Delhi District Court
State vs Alam And Others on 23 May, 2007
IN THE COURT OF SH. RAJ KUMAR TRIPATHI : M.M.
KARKARDOOMA COURTS : DELHI
STATE V. ALAM AND OTHERS
FIR NO. 341/2000
P.S. MANDAWALI
U/S 457/380/511/34 IPC
JUDGMENT
a. The serial no. of the case : 9/2003
b. The date of commission of the : 19/10/2000
offence
c. The name of the complainant : Phool Chand
d. The name of the accused, their : 1) Alam S/o Dilawar Hussain
parentage and address R/o village Barasat PS Bashihar
Distt. 24 Uttar Pargana, West
Bengal, Calcutta (P.O.)
2) Iqbal S/o Muzibar Rehman R/o
village Barasat PS Bashihar
Distt.24 Uttar Pargana, West
Bengal, Calcutta (P.O.)
3) Babloo S/o Alam R/o village
Solaghana PS Bashihar Distt. 24
Uttar Pargana, West Bengal,
Calcutta. (P.O.)
4) Sohail Halder S/o Mujibar
Haldar R/o village Shakchura
PS Bashihar Distt.24 Uttar
Pargana West Bengal,
Calcutta.
e. The offence complained of : 457/380/511/34 IPC
f. The plea of the accused : Pleaded not guilty
g. The final orders : Convicted u/s 457/380/511 IPC
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h. Final arguments heard : 19/5/07
h. The date of order : 23/05/07
A brief statement of the reasons for decision :
1. Accused Sohail Halder has been charge sheeted for
committing the offences punishable under section 457/380/511/34 IPC alongwith other co accused persons. The charge sheet against accused persons was filed on 15/12/2000. Documents were supplied to all the accused persons in terms of section 207 Cr. P.C. During the proceedings in the court, accused Alam, Iqbal and Babloo became P.O. The charge against accused Sohail Halder was framed on 27/9/05 and the matter was put up for prosecution evidence. After completion of prosecution evidence, statement of accused under section 313 Cr. P.C. was recorded. Thereafter the matter was fixed for arguments. This court found accused Sohail Halder guilty for committing the offences punishable under section 457/380/511 IPC. Accordingly accused Sohail Halder was convicted vide judgment dated 13/7/06. The sentencing order was also passed after hearing both the parties on 17/7/06. Accused Sohail Halder preferred an appeal against judgment and order of this court. Vide judgment dated 13/11/06, Ld. Sessions Court remanded back the matter to the trial court with directions to provide legal aid to the accused if he was unable to engage a counsel of his own and all the witnesses except PW-1 be re-summoned for their cross-examination by counsel for the accused. In pursuance of the directions of the Ld. Sessions Judge dated 13/11/06, this court summoned all the material witnesses in the court for the purpose of their cross-examination. All the material witnesses have been cross-examined by the counsel for the accused.
2. Brief facts of the case of the prosecution is that on 19/10/2000 Page 2 of 10 at about 4.00 AM, at house no.3, West Vinod Nagar, Mandawali, the accused in furtherance of his common intention with his three co -accused (Proclaimed Offenders) committed the offence of lurking house trespass by night by entering into the said house belonging to Phool Chand, used as a human dwelling and remaining in possession for the purpose of committing an offence punishable with imprisonment and having taken precautions to conceal such house trespass from some persons entitled to eject or exclude them, thereby, the accused committed an offence punishable under section 457/34 IPC. Secondly, on the above said date, time and place, the accused in furtherance of his common intention with three co accused (Proclaimed Offenders) attempted to commit theft in the said building, which was used as a human dwelling or which was used for the custody of property and, thereby, committed an offence punishable under section 380/511/34 IPC within the jurisdiction of P.S. Mandawali and within my cognizance. Accordingly, charge sheet against the accused persons for aforesaid offences was filed. Documents were supplied to all the accused persons in terms of section 207 Cr. P.C.
3. In the course of proceedings in the court , accused Alam, Iqbal and Babloo became P.O. After hearing arguments on charge a prima facie case under section 457/380/511/34 IPC was found to be made out against accused Sohail Halder. Accordingly, charge against the accused for the said offences was framed on 27/9/05. Thereafter the prosecution was directed to lead its evidence. In order to prove its case, prosecution examined PW1 HC Braham Singh, duty officer, PW-2 Ct. Kiran Pal Singh , PW-3 Sh. Salamuddin, PW-4 Sh. Baldao, PW-5 Sh. Phool Chand, PW-6 Sh. Tarkeshwar and PW-7 SI Ram Prasad.
4. During the course of trial, PW-1 HC Braham Singh proved copy of FIR bearing no.406/05 as Ex.PW1/A and endorsement on rukka as Page 3 of 10 Ex.PW1/B. PW-2 Ct. Kiran Pal proved seizure memo of screw driver and rope as Ex.PW2/A and PW2/A. He also proved seizure memo of broken lock and kunda as Ex.PW2/C . According to him, all the four accused persons were arrested and personally searched vide memo Ex.PW2/D, PW2/E, PWF and PW2/G respectively. He also proved seizure memo of torch and chhanni vide memo Ex.PW2/H and Ex.PW2/J. PW-5 Phool Chand proved his statement given to the IO as Ex.PW5/A. PW-7 SI Ram Prasad proved site plan as Ex.PW7/A.
5. Statement of accused Sohail Halder under section 313 Cr. P.C was recorded in which all incriminating evidence was put to him which were denied by the accused. Accused stated that he is innocent and on the date of incident, he alongwith three co accused persons was coming after attending a marriage party and consuming liquor. There was sudden alarm in the area "Chor Chor" and all four of them were apprehended by the public. He further stated that all the witnesses are interested witnesses. Accused denied to lead defence evidence. Accordingly, defence evidence was closed.
6. I have heard and considered the arguments advanced by Ld. APP for state and counsel for accused and gone through the material available on record.
7. PW5 Phool Chand is the complainant. He deposed that on 19/10/2000 he was sleeping on the second floor of his house. In the wee hours of morning he heard some noise from the down stairs. On hearing the noise, he woke up his brother Baldao who was sleeping alongwith him and asked him to accompany to check as to what was happening downstairs. According to the witness, they came down and found the lock and bolt of the door of the room on the ground floor was broken. They saw inside the room from the window and found four persons present there who were Page 4 of 10 ransacking the room and the articles kept there. They closed the door of the room from outside and raised an alarm by shouting "Chor Chor". According to the witness, the public gathered at their house. The accused persons were taken out from the room by public and were beaten. He further stated that the accused persons were carrying one screw driver, one torch and one iron subble. According to him, the police was called, the police reached at the spot and they handed over the accused persons alongwith the instruments recovered from them to the police. According to him, the broken lock, the bolt, the screw driver, the torch and the iron subble were taken into possession by the police in his presence.
8. PW4 Baldao is another eye witness of the incident. He deposed on the same lines as PW5 Phool Chand. The witness corroborated the testimony of Phool Chand.
9. PW3 Salimuddin is another public witness of the case. According to the witness, at about 4 a.m. , he heard loud noise of "Chor Chor" . On hearing the noise, he reached at the spot where he found three four public persons were apprehended by the public. They were given beatings by the public at that time. He further stated that the persons who were apprehended were handed over to the police by the public.
10. PW6 Tarkeshwar is another public and eye witness of the incident. According to the witness on 19/10/2000 at about 4 pm when he was going to fetch the milk, he heard the noise of "Chor Chor" when he reached the house of Phool Chand. He went inside with the help of Salimuddin, Phool Chand and his brother, four persons were apprehended by them. He further deposed that the other public persons also gathered at the spot and gave beatings to the four persons who were trying to commit theft in the house of Phool Chand. The witness further testified that he saw Page 5 of 10 that lock of one room was broken and one screw driver, one iron rod and one torch were recovered from the possession of the accused persons. According to the witness after some time, police reached at the spot and the four accused persons were handed over to the police by them.
11. PW2 Ct. Kiran Pal deposed that on 19/10/2000 he accompanied IO SI Ram Prasad to house no.E-184, Gali no.3, West Vinod Nagar, Delhi. According to him, Phool Chand met them who produced four persons before IO SI Ram Prasad whose names were Alam, Iqbal, Mohd. Sohail and Babloo. According to the witness, a rukka was written by SI Ram Prasad on the statement of Phool Chand and it was given to him for registration of the case. He got the case registered and returned back at the spot and gave the copy of the FIR and original rukka to IO. He correctly identified the accused and the case property in the court.
12. PW7 SI Ram Prasad is the IO of the case. He stated that on receiving DD no.6A he alongwith Ct. Kiran Pal went to the spot where Phool Chand and other public persons met them who produced four persons before him whose names were Sohail Halder, Babloo, Alam and Iqbal. According to witness Phool Chand produced one screw driver, one iron chhaina, one torch, one plastic rope, broken lock and kunda of the door of the room of his house to him. He further stated that all the four accused were beaten by the public and he took them for medical examination at LBS hospital. He further stated that he prepared site plan Ex.PW7/A at the instance of Phool Chand. He correctly identified the accused and the case property in the court.
13. Thus it is clear from the testimony of complainant and other public witnesses that on 19/10/2000 four persons who entered in the house of the complainant were apprehended by the public persons and they were Page 6 of 10 given beatings. All the four accused persons were handed over to the police when police officials reached at the spot. From the testimony of Pw2 Ct. Kiran Pal and PW7 SI Ram Prasad, it has been proved on record that the four persons who were produced before them by the public witnesses whose names were Sohail Halder, Babloo, Alam and Iqbal. Both the witnesses correctly identified accused Sohail Halder as one of the accused who was handed over to them by the public persons. Accused Sohail Halder himself admitted in his statement under section 313 Cr. P.C. that he alongwith other accused persons were apprehended by the public. Thus the identity of accused Sohail Halder from the place of occurrence has been proved beyond all shadow of reasonable doubt.
14. All the public witnesses, Ct. Kiran Pal and IO SI Ram Prasad correctly identified the case property in the court. According to IO, one screw driver, one iron chhaina, one torch, one plastic rope, broken lock and kunda of the door of the room was handed over by complainant Phool Chand to him. The lock, bolt, the screw driver, the torch and the iron subble were the same instruments which were recovered from the possession of the accused persons and correctly identified by all the witnesses. Thus the recovery of the case property i.e. instrument of burglary from the possession of the accused has been proved beyond all shadow of reasonable doubt.
15. During the course of arguments, Ld. counsel for accused after drawing my attention to the cross-examination of Phool Chand and other prosecution witnesses submitted that there is discrepancy of the time of arrival of police at the spot. It was argued by Ld. APP for state that there is no major discrepancy in the timing of the incident and the arrival of the police at the spot. I have carefully gone through the testimonies of all the prosecution witnesses. According to the case of the prosecution, the incident Page 7 of 10 occurred at about 4 a.m. on 19/10/2000. It is admitted by all the witnesses of the prosecution that the incident occurred in the morning. The police also reached at the spot after some time. Even if there is some minor discrepancy in the timing of the arrival of the police at the spot and the timing of the incident, it is not fatal to the case of the prosecution. It is revealed from the record that the date of incident is 19/10/2000 . The prosecution witnesses were examined in the court in the year 2006 and cross-examined in the year 2007. Due to passage of time and as the witnesses deposed in the court, after a period of 6 years, there is possibility of fading their memory. The witnesses could not be expected to tell the exact timing of the incident and the arrival of the police as a period of 6 years is a long period. Thus after going through the testimonies of the prosecution witnesses , I do not find any major and material discrepancy and contradiction regarding the time of arrival of the police at the spot and the time of incident and the same is not at all fatal to the case of prosecution.
16. Ld. counsel for accused further argued that the case property was not sealed by the IO at the spot. He further submitted that PW2 Ct. Kiran Pal admitted in his cross-examination that the pullandas were sealed with the seal of RP and the seal after use was given to him and he returned the seal to the IO. He further submitted that there is material contradiction regarding the seal of the case property by the IO. A bare perusal of the file shows that the case property was produced in the court in unsealed polythene bag. The case property has also been identified by all the prosecution witnesses stating that the case property was the same instruments which were recovered from the possession of all the accused persons. Thus the case property has been correctly identified by the witnesses in the court. Even if the case property was not sealed by the IO, it does not prejudice the case of the prosecution in any manner. It is a settled principle of law that the fault/lacunae of the investigating agency Page 8 of 10 cannot be fatal to the case of the prosecution when the things have been proved in the court beyond all shadow of reasonable doubt. In the instant case as the case property has been correctly identified by the prosecution witnesses when produced in the court and it was the same case property which was recovered from the possession of all the four accused, it does not matter whether it was sealed by the IO or not.
The complainant Phool Chand PW5, his brother Sh. Baldao PW4 and other public witnesses namely Salimuddin and Tarkeshwar are all reliable and credible witnesses. All the public witnesses have no previous enmity with the accused. There is no reason to dis-believe their testimony. All the witnesses have deposed whatever they saw with their naked eyes. There is no reason to cast doubt on their testimony. Accused Sohail Halder has failed to show as to why he was found present in the house of complainant Phool Chand and what he was doing there without his permission. Accused Sohail Halder has been apprehended alongwith the other co accused by the public persons from the house of complainant Phool Chand. He himself admitted in his statement under section 313 Cr. P.C. that he was apprehended by public.
17. In view of the discussion made above, I am of the considered view that prosecution has proved its case against accused Sohail Halder beyond all shadow of reasonable doubt. The accused Sohail Halder was found committing theft alongwith other co-accused in the house of complainant Phool Chand but he could not succeed in his nefarious design as he was apprehended by the complainant and other public persons and thus the accused committed an offence punishable under section 380/511/34 IPC. Accused Sohail Halder committed lurking house trespass by night in order to commit theft and thereby he committed an offence punishable under section 457 IPC. The prosecution has proved the ingredients of offence Page 9 of 10 punishable under section 457/380/511/34 IPC against accused Sohail Halder beyond all shadow of reasonable doubt. Accordingly, accused Sohail Halder is convicted for the offence punishable under section 457/380/511/34 IPC.
Announced in the open court (Raj Kumar Tripathi )
on 23rd day of May 2007 Metropolitan Magistrate
Karkardooma Courts, Delhi
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