Delhi District Court
State vs . Imran Khan on 11 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
:: JUDGMENT ::
STATE Vs. IMRAN KHAN FIR NUMBER : 297/2019 UNDER SECTION : 380/411/451 (Part II) IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020024802020 B. Date of Institution : 28.01.2020 C. Date of Commission of : 15.12.2019 Offence D. Name of the Complainant : Mr. Akil Jamil Ansari, S/o Jamil Ansari, R/o H. No. H-4, First Floor, Muradi Road, Batla House, New Delhi E. Name of the Accused, his : Imran Khan, S/o Sh. Sanowar Khan, Parentage & Addresses R/o H. No. P-71, Gali No. 3, 20 Feeta Road, Batla House, Jamia Nagar, New Delhi F. Offence complained of : U/s 380/411/451 (Part II) IPC.
G. Plea of the Accused : Pleaded not guilty and claimed trial
H. Judgment reserved on : 11.07.2023
I. Date of Judgment : 11.07.2023
J. Final Order : Convicted u/s 380/451 (Part-II) IPC
and Acquittal u/s 411 IPC
Accused Details:
Rank of the accused 1
Name of the accused Imran Khan
Date of Arrest 15.12.2019
Date of release on Bail 28.01.2020
Offence charged with 380/411/451 (Part II) IPC
Whether Acquitted/ convicted Convicted u/s 380/451 (Part-II) IPC
and Acquittal u/s 411 IPC
Sentence Imposed --
FIR No. 297/2019 State Vs. Imran Khan Page No.1 of 16
Period of detention undergone --
during trial (for section 428 CrPC)
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 Sh. Akil Jamil Ansari
2 Sh. Nadeem Pasha
3 Sh. Javed Alam
4 SI Satender Kumar
5 HC Jeetam Singh
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No. 1 Complaint Ex. PW1/A 2 Seizure Memo Ex. PW1/B 3 Arrest Memo Ex. PW1/C 4 Personal Search memo Ex. PW1/D 5 Site Plan Ex. PW1/E 6 Memo Ex. PW1/F 7 Disclosure Statement of Accused Ex. PW3/A 8 Rukka Ex. PW4/A DEFENCE WITNESS:NONE LIST OF DOCUMENTS (PROVED BY DEFENCE): NA Factual Background:
1. Briefly stated the case of the prosecution is that on 15.12.2019 at about 9 o'clock one boy has entered into the room of the complainant situated at H-4, 1st Floor, Muradi Road, Batla House, Jamia Nagar and taken away one HP Laptop and a mobile phone Redmi Note-5 (Black Colour) in which SIM No. 7759029463 was placed. When the said boy was leaving with aforesaid Mobile and Laptop from first floor, complainant and his friend woke up. On seeing both, accused started running but complainant and his friend managed to catch him and got recovered the HP Laptop and Mobile phone Redmi Note-5.
Name of the boy apprehended was Imran. On this basis, the present FIR was registered. Upon completion of investigation, FIR No. 297/2019 State Vs. Imran Khan Page No.2 of 16 chargesheet was filed against accused Imran Khan under section 380/411 of the Indian Penal Code.
Court Proceedings:
2. The ld. Predecessor of this Court vide order dated 28.01.202 took cognizance of the offence (s) and issued process against the accused. Pursuant to the appearance of the accused Imran Khan, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 01.12.2021 passed by the Ld. Predecessor, charges under Section 380/451(PartII)/411 of IPC were framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined 5 witnesses namely Akil jameel ('PW1'), Nadeem Pasha ('PW2'), Javed Alam ('PW3'), SI Satender ('PW4') and HC Jeetam ('PW5').
5. PW1/Akil Jamil Ansari deposed that he is in a private job and on 15.12.2019, he was residing at H-4, 1 st Floor, Muradi Road, Batla House, Jamia Nagar. His friend Javed was also residing with him at that time. On that day at about 09:00 PM, after getting tired from the studies both friends went to sleep. His laptop and mobile phone were placed near him on the floor.
Meanwhile Javed heard some noise, they noticed that one unknown person had entered into their house and took away his mobile and laptop. His friend Javed ran after the said person and FIR No. 297/2019 State Vs. Imran Khan Page No.3 of 16 caught him while that person was going downstairs. Thereafter, he also came there. Javed called at 100 number. Police came at the spot. Witness has given written complaint to the police same is Ex.PW 1/A bearing his signatures at point A. Police seized the aforesaid laptop and mobile phone vide seizure memo Ex.PW 1/B bearing his signatures at point A. Police arrested the accused vide memo Ex.PW 1/C bearing his signatures at point A and also conducted personal search vide memo Ex.PW 1/D bearing his signatures at point A. Police prepared the site plan at his instance and same is now Ex.PW 1/E bearing his signatures at point A. After few days the laptop and mobile phone were released on Superdari vide memo Ex.PW1/F. Witness has correctly identified the accused in court. 4 photographs of the case property i.e. mobile phone and laptop are shown from the judicial file to the witness. After seeing the photographs witness has correctly identified it. Photographs are Ex. P1 (Colly) and the case property mobile and laptop are now Ex. S1 and Ex. S2.
6. During cross examination witness deposed that he and his friend Javed slept in different rooms. On the day of incident door was open and not locked, as they thought that they will lock the door after some time. When they apprehended the accused, there were no other person apart from him, Javed and accused. Javed called the police at 100 number within 10 minutes of apprehending the accused. Police reached the spot within 20 minutes. Laptop and mobile phone were in the possession of the accused when they apprehended the accused. He has given the complaint at the spot itself.
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7. PW2/Nadeem Pasha deposed that on 15.12.2019, he was present at his clinic at S-6, Pehlwan Chowk. At about 9-9.30 am, he heard some noise "chor chor". He came out of his clinic and found that two persons had caught one person along with laptop. Those two persons stated that the said thief had stolen their laptop and mobile. He had called at 100 number. Police came at the spot. They handed over the apprehended person who disclosed his name as Imran Khan, to the police along with stolen articles. Police seized the stolen articles and arrested the accused Imran Khan. Identity of the accused is not disputed since he was exempted from appearance on that condition only.
8. During cross examination PW2 deposed that he is RMP. He had not studied for medical degree and he does not have any medical degree. His clinic in the name of 'Simnani Dawakhana'. He does not know the address where the theft had taken place. He had not seen the commission of offence. He had not signed the seizure memo of the recovery of stolen property. He has further deposed that stolen property was not taken from the possession of accused in his presence.
9. PW3/Javed Alam deposed that on 15.12.2019 he along with his friend were sleeping in their house at H-4, 1 st floor, Mu- radi Road, Batla House, Jamia Nagar, New Delhi. At about 9:00AM they heard some noise. He woke up and saw that one person was going from main gate of his flat. He made a noise and his friend also woke up and both went to catch the said person. The said person had reached at a distance of 10 feet from his building and they apprehended the said person. Someone called at 100 number. Name of his friend is Akil Jamil. After half an FIR No. 297/2019 State Vs. Imran Khan Page No.5 of 16 hour police came at the spot. One laptop of HP, one mobile phone Redmi note 5, was stolen. The name of the person who was apprehended by them was Imran. His friend has given the complaint to the police. Police arrested the accused vide memo Ex.PW1/C bearing his signature at point B and also conducted personal search vide memo already Ex.PW1/D bearing his signa- ture at point B. Police recorded statement of accused vide memo Ex.PW3/A bearing his signature at point A. He had given the ownership proof of aforesaid mobile and laptop to the IO. He had released the aforesaid stolen articles from the PS vide superdari- nama already Ex.PW1/F bearing his signature at point A. The laptop and mobile were seized vide memo already Ex.PW1/B bearing his signature at point B. Identity of the accused is not dis- puted since he was exempted from appearance on that condition only. 4 photographs of the case property laptop and mobile were shown from the judicial file to witness. After seeing the photo- graphs witness has correctly identified the same. The photo- graphs are already Ex. P1 (Colly) and the case property i.e. mo- bile and laptop are already Ex. S1 and S2.
10. During cross examination witness deposed that he was re- siding at the aforesaid flat on rent. Other families were residing in the building on other floors. He was studying in Jamia Univer- sity in MCA Course. He had purchased the said laptop from his friend namely Md. Maqbool Nabani for Rs.25,000/-. His friend had handed over the original receipt. His friend had not issued any receipt of Rs.25,000/- for purchasing of laptop. He used to use the said laptop. He had purchased the said mobile phone Redmi note 5 from Flip cart. His mobile phone contained SIM of Airtel. On the day of incident door his house was open mistak-
FIR No. 297/2019 State Vs. Imran Khan Page No.6 of 16 enly. He had seen the boy from the back side from a distance of 2 meter when he was inside my house. Witness do not remember as to what clothes/ colour of clothes were worn by the accused. On that date his neighbors had come to the spot after his noise. IO did not record statement of any public person/ neighbor in his presence. IO obtained his signatures on 2-3 documents. IO re- mained at the spot for about 45 minutes to 1 hour. IO called him at the PS on the same day. Thereafter, IO did not make him sign on any documents. When he had gone to meet IO, he had given documents of ownership of Mobile phone which is in his name and laptop bills which is in the name of his friend namely Md. Makbool.
11. PW4 SI Satender Kumar deposed that on 15.12.2019 he was posted as ASI at Jamia Nagar Police Station. On that day he was on emergency duty. During emergency duty he received a PCR call vide DD no. 6 regarding apprehension of one thief at infront of house no. 4, Muradi Road, Batla House, Jamia Nagar, New Delhi. He along with Ct. Jeetam reached at the spot and met with the complainant Akil and his friend Javed along with public persons. They had apprehended one person. They informed him that the said person had committed theft in their house. The same person disclosed his name as Imran and one laptop make HP and one mobile phone make Redmi Note 5 was recovered from his possession. Complainant Akil gave him written complaint. He prepared rukka Ex.PW 4/A bearing his signature at point A on the basis of complaint and handed over the same to Ct. Jeetam and sent him to PS for registration of FIR. After registration of FIR, Ct. Jeetam returned to the spot and handed over copy of FIR and original rukka to him. He seized aforesaid mobile and laptop FIR No. 297/2019 State Vs. Imran Khan Page No.7 of 16 vide memo Ex.PW 1/B bearing his signature at point B. He recorded disclosure statement of the accused vide memo already Ex.PW 3/A bearing his signature at point B. He arrested the ac- cused vide memo already Ex.PW 1/C bearing his signature at point C. He also conducted personal search of the accused vide memo already Ex.PW1/D bearing his signature at point B. He also prepared the site plan already Ex. PW 1/E bearing his signa- ture at point B. He obtained the bills of the aforesaid laptop and mobile phone from the complainant. He had deposited the case property in the malkhana of the PS Jamia Nagar. Identity of the accused is not disputed since he was exempted from appearance on that condition only. 4 photographs of the case property laptop and mobile were shown from the judicial file to witness. After seeing the photographs witness has correctly identified the same. The photographs are already Ex. P1 (Colly) and the case property i.e. mobile and laptop are already Ex. S1 and S2.
12. During cross examination PW4 deposed that he received the call at about 9.30 AM on the date of incident. Distance be- tween the spot and PS is about 1 Kms. He reached the spot within 20 minutes of receiving DD entry. He went to the spot on his personal bike. He had not issued any notice to any public per- son present at the spot. He had orally asked the public persons to join the investigation. He had recorded the statement of one pub- lic person at the spot namely Nadeem. Complainant and his friend were the eyewitnesses of the incident. Akil and his friend had handed over the laptop to him. Bill was provided and placed in file and same is matter of record. Mobile bills are in the name of Javed. There is no bill in the name of Javed for laptop.
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13. PW5/HC Jeetam deposed that on 15.12.2019 he was posted at PS Jamia Nagar as constable. On that day, he alogwith ASI Satender were on emergency duty from 08:00AM to 08:00PM. During emergency duty, ASI Satender received a DD No. 6A regarding theft and apprehension of thief at Moradi Road, Batla House, where Akil Jameel, Javed Alam and Mod. Nadeem was also present. Complainant has produced one person namely Imran informed them that Imran was apprehended with stolen property. Akil Jameel has given a written complaint to ASI Saten- der. ASI Satender prepared rukka and given the same to him and sent him to PS for registration of FIR. He went to PS and got reg- istered the present FIR. He returned to the spot with rukka and copy of FIR and handed over the same to ASI Satender. All the exhibits were shown to the witness. He has correctly identified all of them.
14. During cross examination he deposed that IO had not made departure entry in his presence. He left the PS at about 09:30AM. No efforts were made to witness from public. Stolen articles were handed over to the IO by the complainant in his presence. He doesnot remember the number of persons present at the spot.
Statement of the Accused:
15. Accordingly, vide order dated 13.02.2023, PE was closed. In the statement recorded u/s. 313 CrPC, accused denied the case of the prosecution and pleaded innocence. He stated that he has been falsely implicated in this case. Accused has chosen not to lead defence evidence.
Final Arguments:
16. Ld. APP has submitted that the case is proved beyond reasonable doubt. It is also submitted that such offences are grave FIR No. 297/2019 State Vs. Imran Khan Page No.9 of 16 offence and the accused be convicted of the offence charged under section 380/451(Part II)/411 of the Indian Penal Code.
17. Per Contra, Ld. Counsel for defence has submitted that that accused has been falsely implicated in this case. No public witness was called by the prosecution to prove the case. There is no eye witness of the incident. He has further submitted that accused is completely innocent. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
18. I have heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
19. Before appreciation of evidence and moving towards factual situation, first it is required to see the legal position of Section 380/451(Part II)/411 of the Indian Penal Code.
20. Section 380 of the IPC provides punishment for theft in dwelling house. Section 378 defines theft. The ingredients of offence of theft are:
I. Moving a movable property of a person out of his possession without his consent.
II. The moving being in order to the taking of the property with a dishonest intension.
Section 380 relates to an aggravated form of theft that is theft in a dwelling house. Taking of movable property is not necessarily a theft unless it was taken "out of the possession" of any person, which means another person. The person who is in possession of the movable property which is a subject matter of theft, must FIR No. 297/2019 State Vs. Imran Khan Page No.10 of 16 possess it in lawful capacity. It is not required that the subject of theft is taken out from the owner of the said property. Further, the aggravating circumstance enhancing the normal criminality of the offence of simple theft here present is that, the property removed from human dwelling or for the custody of property. In State of Kerala v. K. Chekooty reported as AIR 1967 Ker. 197, "recovery of a part of the chain from karriyottu Paramba, belonging to someone else, pursuant to the information given by the accused was held to be sufficient to establish that the informant committed theft".
21. Section 451 of the IPC provides punishment for house trespass in order to commit offence punishable with imprisonment. It states that whoever does criminal trespass by entering into or remaining in any building, tent, vessel, used as human dwelling, or any building used as a place for worship, or as a place for the custody of property. In order to understand House trespass, criminal trespass is required to understand. Section 441 of the IPC defines criminal trespass. The essential ingredients of the criminal trespass are as follows:
I. Entry into or upon property in the possession of another.
II. If such entry is lawful then unlawfully remaining upon such property.
III. Such entry or unlawful remaining must be with intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. Criminal trespass becomes houses trespass when accused commits criminal trespass in any building, tent, vessel, used as a human dwelling, or any building used as place for worship or as FIR No. 297/2019 State Vs. Imran Khan Page No.11 of 16 place for the custody of property as defined in section 442 of the IPC. Section 451 is an aggravated form of offence under section 442 of the IPC. The prosecution is required to proof that the accused committed house trespass in order to commit an offence punishable with imprisonment or that the offence in question is theft.
22. Section 411 of the IPC provides that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property. It means mere possession of stolen property is not and cannot be an offence. In order to be an offence, it must be received or retained dishonestly, and with the knowledge, or sufficient cause for belief that it was stolen property. To be liable under Section 411 of the IPC, it must be proved that the accused either dishonestly received the property or having received honestly, dishonestly retained it. In both the cases the accused must receive it from another. The mere recovery of stolen properties certainly is not enough for conviction under section 411 of the IPC. In Trimbak v. State of MP reported as AIR 1954 SC 39, "Hon'ble Supreme court held that it is duty of the prosecution in order to bring home the guilt of a person under section 411 of the IPC, to prove that the stolen property was in the possession of the accused and that some person other than the accused had possession of the property before the accused got possession of it and the accused had knowledge that the property was stolen property". Same view was taken by Hon'ble Orissa High Court in Lula Singh V. State reported as (1959) 22 CLT 454.
23. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused FIR No. 297/2019 State Vs. Imran Khan Page No.12 of 16 always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3)SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
24. Coming back to the present case, at the outset it is clarified that FIR, and receipts of laptop and Mobile are part of record. All these documents were not given any identification but their references came during the prosecution evidence and the same were not disputed by the accused during cross examination. It is already settled that exhibition of documents are merely an identification of the document and its relevancy can be seen later. Identification of the stolen properties are also not disputed.
FIR No. 297/2019 State Vs. Imran Khan Page No.13 of 16 Accordingly, FIR, receipts of laptop and mobile phone shall be read in evidence. It is further clarified that the time noted during recording of evidence of PW1 i.e. 9PM is a typographical error which can be gathered from bare perusal of other material and evidence placed on record. Accordingly, the present offence has taken place at about 09.00 AM.
25. It is not disputed that complainant and his friend was living at H-4, 1st Floor, Muradi Road, Batla House, Jamia Nagar. It has come into evidence of PW3 that due to noise he woke up and seen one person was going from main gate of his flat. Accused was running away with the stolen property. He raised the alarm and caught that person with the help of the complainant. He has found that one HP laptop and one mobile Redmi Note-5 was stolen. Thereafter, on call at 100 number, police came at the spot and the aforesaid stolen property was recovered from the possession of the accused. The accused was identified as Imran Khan. Police has seized the said stolen property vide seizure memo Ex. PW1/B. However, the stolen article was not recovered in the presence of PW2 and PW2 has not seen the theft but the formalities done by the police and his arrival at the spot after hearing "chor-chor" further strengthen the case of the prosecution. The testimony of PW2 is relevant as per Section 6 of the Indian Evidence Act. The accused was arrested from the spot which is not disputed. Mere putting suggestion is not enough to disprove the case of the prosecution.
26. The recovery of the stolen property is sufficient to presume that he has committed the offence of theft from the room where complainant was residing with his friend. It has also come on evidence that the room was not locked from inside and it was left FIR No. 297/2019 State Vs. Imran Khan Page No.14 of 16 open by the complainant and his friend mistakenly. Accused has taken away the laptop and mobile phone from the possession of the complainant and his friend without their consent. PW2 is the public witness who has witnessed the discharge of official function of the police at the spot. In this case though nobody has seen the accused while entering into the room and committing theft but he was seen by PW3 while leaving the said premises and accused was caught with the possession of the stolen properties. PW1 and PW3 has corroborated each other on all material particulars and no inconsistency emerged out of the testimonies of the prosecution witnesses.
27. Coming to the offence under section 411 of the IPC, mere recovery of stolen article is not sufficient to prove guilt of section 411 of the IPC. To be liable under Section 411 of the IPC, it must be proved that the accused either dishonestly received the property or having received honestly, dishonestly retained it. In both the cases the accused must receive it from another. This principle is settled and already discussed in preceding paragraphs. It is proved that stolen properties were recovered from the possession of the accused but besides recovery, no other evidence is produced by the prosecution to prove the guilt under section 411 of the IPC. It has been remarked before that the same person cannot be subjected to a double conviction for theft and receiving in respect of the same act.
28. In view of the forgoing discussion, this court is of the opinion that the prosecution has succeeded in bringing home the guilt of accused on the standard of beyond reasonable doubt by proving the necessary ingredients of the charged offence u/s 380/451(Part-11) IPC. There is no material to connect the FIR No. 297/2019 State Vs. Imran Khan Page No.15 of 16 accused with Section 411 IPC.
Decision:
29. In view of above discussion, accused Imran Khan S/o. Sanwar Khan is accordingly convicted for the offences punishable u/s 380/451 (Part II) IPC but acquitted for the offence under section 411 of the IPC.
Announced in open (Abhitesh Kumar)
Court today i.e on 11.07.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains sixteen pages (16) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 11.07.2023 FIR No. 297/2019 State Vs. Imran Khan Page No.16 of 16