Delhi District Court
State vs . Saleem on 3 May, 2011
IN THE COURT OF MS. SUGANDHA AGGARWAL:
METROPOLITAN MAGISTRATE (WEST3) : DELHI.
State Vs. Saleem
FIR No. 37/1996
PS Nangloi
Unique Case ID No. 02401R0067401997
J U D G M E N T
(a) Sr. No. of the case 1644/1
(b) Date of offence 18.1.1996
(c) Complainant Abdul Wahid
(d) Accused Saleem, S/o Nasim, R/o H3/263,
Sultanpuri, Delhi.
(e) Offence Under Section 457 & 380 read
with Section 34 IPC.
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 10.2.1997
(i) Date when judgment 28.04.2011
was reserved
(j) Date of judgment 03.05.2011
1. In the present case, accused Salim and Birju have been charge sheeted for the offences under Section 457 & 380 read with Section 34 of Indian Penal Code. The allegations against the accused, as detailed in the chargesheet are that on 18.1.1996, both FIR No. 37/1996 Page No. 1 of 31 accused in furtherance of their common intention entered in the building which was in possession of Mohd. Wahid. They have entered the said building by house breaking and with an intention to commit theft. They have also committed theft of a VIP oddysi containing three wrist watches and a sum of Rs.5000/ and some documents of Society and also another suitcase containing sample of electronic and clothes belonging to the complainant. According to the prosecution, the accused persons had committed offence under Sections 457 & 380 read with Section 34 of Indian Penal Code.
2. After completion of investigation, chargesheet was filed. Accused persons were supplied with copies in compliance of Section 207 Code of Criminal Procedure, 1973. Charge was framed for offences under Sections 457 & 380 read with Section 34 IPC against the accused persons vide order dated 26.6.1998 to which the accused pleaded not guilty and claimed trial. During trial, accused Birju was declared proclaimed offender.
3. Prosecution adduced evidence in support of its case. FIR No. 37/1996 Page No. 2 of 31 Mohd. Wahid, the complainant was examined as PW1. He has deposed that on 18.1.1996 at around 3.30 am, he heard some noise in the upper room of his house. When he checked the room, he saw that three persons were present in the house. He further deposed that out of those three persons, two persons are present in the Court. He raised alarm. Neighbourers apprehended one of the accused persons who had a suitcase in his hand containing bed sheets and electronic items etc. Police was informed. Statement of PW1 was recorded by the police which was proved as Ex.PW1/A. The suitcase was seized vide seizure memo Ex.PW1/B. Accused Salim was arrested. His personal search was conducted vide memo Ex.PW1/C. Disclosure statement of accused Salim was recorded which was identified as Ex.PW1/D. PW1 correctly identified the case property and the accused. PW1 was crossexamined by accused Birju and not crossexamined by accused Salim and was then discharged.
4. PW2 Abdul Aziz had deposed that he did not remember the date, month or year of incident. He has deposed that he saw FIR No. 37/1996 Page No. 3 of 31 that some public persons were beating the accused. He requested the public persons not to beat the accused and just hand him over to police. He correctly identified accused Salim who was beaten by the public persons. PW2 also deposed that at that time, accused Salim was carrying a suitcase in his hand. PW2 has identified his signatures on the seizure memo Ex.PW1/B at point B and also on the disclosure statement Ex.PW1/D at point B. PW2 correctly identified the suitcase and accused persons. PW2 was cross examined by accused Birju and not crossexamined by accused Salim and was then discharged.
5. PW3 Constable Sham Sunder and PW4 HC Joginder Singh have deposed that on 18.1.1996, on receipt of DD No.53B, they reached at the spot and met the complainant Mohd. Wahid, who produced the accused alongwith suitcase. Statement of complainant was recorded and endorsement was made on the same. On the basis of the same, rukka was prepared and FIR was got registered. Accused Salim made a disclosure statement and case property was seized vide memo Ex.PW1/B. Both the FIR No. 37/1996 Page No. 4 of 31 witnesses duly identified the case property as well as the accused persons. PW3 was crossexamined by accused Salim and discharged. PW4 was not crossexamined and discharged.
6. After closure of prosecution evidence, the statement of accused Salim was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead any evidence in his defence.
7. Final arguments heard. Record is perused.
8. In the present case, accused Salim has been charged for committing offences for committing lurking house trespass by night under Section 457 of Indian Penal Code and the offence of theft under Section 380 of Indian Penal Code. As both the offences are distinct in nature, they are dealt with separately. OFFENCE UNDER SECTION 380 OF INDIAN PENAL CODE.
9. In order to prove the guilt of accused for offence under Section 380 of Indian Penal Code, the prosecution has to prove FIR No. 37/1996 Page No. 5 of 31 that accused has dishonestly taken away some articles from the possession of complainant without the consent of the complainant. The accused has taken away the said articles from any dwelling house, tent or vessel. In the present case, the prosecution has alleged that accused Salim has committed theft in the house of Mohd. Wahid. In order to prove the guilt of accused, the prosecution has examined PW1 Mohd. Wahid who is the eye witness to the incident. PW1 Mohd. Wahid has deposed that he saw accused Salim present in his house. He raised alarm and accused Salim was apprehended by the neighbourers. When accused Salim was apprehended, he was having a suitcase in his hand which belong to PW1 Mohd. Wahid. PW1 has correctly identified the accused Salim in the Court and has also correctly identified the suitcase which was recovered from accused Salim as belonging to him. PW1 was not crossexamined by accused Salim despite opportunity and hence his testimony has gone unrebutted and unchallenged by accused Salim. The other witness examined by the prosecution to prove the factum of theft is PW2. PW2 is not FIR No. 37/1996 Page No. 6 of 31 the eyewitness to the incident. However, he has deposed that he had seen accused Salim with the suitcase in his hand. He has further deposed that accused Salim was beaten by the public persons. Police arrived at the spot and arrested accused Salim. PW2 was also not crossexamined by accused Salim despite opportunity and hence his testimony has also gone unrebutted and unchallenged by accused Salim.
10. Accused Salim has neither crossexamined PW1 and PW2 and not led any evidence in his defence. Accused has not even crossexamined the witnesses to put forth his defence. Only certain arguments have been raised by the counsel for accused Salim at the stage of final arguments.
11. Learned counsel has argued that accused Salim has been falsely implicated in this case. It is stated that the statement of accused under Section 313 of Code of Criminal Procedure, 1973 has not been recorded in detail, and therefore accused has not been given an opportunity to put forth his defence. Hence till the time the accused is not given an opportunity to put forth his defence, he FIR No. 37/1996 Page No. 7 of 31 cannot be convicted for the said offence. In this context, the learned counsel has placed reliance upon the judgments reported as Kaur Sain Vs. The State of Punjab 1974 Crl. LJ 358 and Randhir Singh Vs. State 1980 Crl. LJ 1397.
12. It is a settled law that the statement of accused under Section 313 of Code of Criminal Procedure, 1973 is recorded only to give an opportunity to accused to explain the incriminating evidence which has come on record against him. The purpose of recording the statement under Section 313 of Code of Criminal Procedure, 1973 is to give an opportunity to rebut the incriminating evidence and put forth his defence. Till the time the said statement of accused is explaining all the incriminating evidence against the accused and accused is not misled from the same, it cannot be said that the statement of accused under Section 313 of Code of Criminal Procedure, 1973 has not been properly recorded.
In the case of Suresh Chandra Bahri Vs. State of Bihar 1994 Crl. LJ 3271, the Hon'ble Supreme Court has held as under : "Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally FIR No. 37/1996 Page No. 8 of 31 unaware of the substance of the accusation against them with regard to the motive part. In this regard, a reference may be made to question Nos. 5, 6 & 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under Sec. 313 Cr.PC.
xxx xxx xxx In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above, it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for appellants in this behalf therefore has no merit."
13. In the present case also, the sum and substance of questions Nos. 1 and 2 put to accused Salim in his statement recorded under Section 313 Cr.PC is that on 18.1.96 at around 3.30 am, he was found committing lurking house breaking by night by entering into the building which was in possession of the complainant and committed theft of certain articles. The details of which are also given in these questions. These questions also specifically stated that FIR was registered, site plan was made, accused was arrested and his personal search was conducted. Question No.2 has also specifically stated that the disclosure statement of accused was recorded and case property has been FIR No. 37/1996 Page No. 9 of 31 exhibited during evidence. Therefore, from the substance of the said questions, it cannot be said that there has been any incriminating evidence which has not been put to the accused in his statement recorded under Section 313 Cr.PC.
14. In the present case, accused Salim has given answers to all the questions put to him in his statement recorded under Section 313 of Code of Criminal Procedure, 1973. The entire facts and the documents proved against him have been put to the accused. He has also been asked as to whether he wants to say anything else in his defence. He has been put a specific question as to why this case has been registered against him. He has been given an option to lead defence evidence to which he has answered in negative. He was also asked as to whether he claims the case property or not to which also he answered in negative. A bare reading of statement of accused recorded under Section 313 of Code of Criminal Procedure, 1973 will show that accused is very well aware about all the facts and incriminating evidence against him. He has answered to all the questions and he was not misled by the same in any FIR No. 37/1996 Page No. 10 of 31 manner. The accused opted not to lead any evidence in his defence and he opted to answer only that it is a false case to the question as to why this case has been registered against him. Therefore, under these circumstances, it cannot be said that accused Salim has not been given given an opportunity to put forth his defence.
15. Even in the judgment reported as 1980 Crl. LJ 1397, the Hon'ble Delhi High Court has held that any incriminating evidence which has not been put to the accused in his statement of accused recorded under Section 313 of Code of Criminal Procedure, 1973 cannot be used against him. However, it is nowhere stated that the incriminating evidence put to the accused cannot be considered only because it has not been explained in detail. Accused Salim has very well understood the incriminating evidence which is put to him and he has answered to the same. There has been no incriminating evidence on record which has not been put to him so as to make it inadmissible in the present case.
16. Despite the fact that accused Salim was given opportunity to crossexamine PW1 and PW2 twice, but he opted not to cross FIR No. 37/1996 Page No. 11 of 31 examine the said witnesses. Accused Salim has also merely denied to the incriminating evidence put to him and he has not explained his defence in his statement recorded under Section 313 of Code of Criminal Procedure, 1973.
It has been held by Hon'ble Supreme Court in the case of Aftab Ahmad Anasari Vs. State of Uttaranchal (2010) 2 SCC 583 as under:
"This court further notices that this court in Vasa Chandershekhar Rao Vs. Ponna Satyanaryana (2000) 6 SCC 286 and Geeta Vs. State of Karnatka (2000) 10 SCC 72 while explaining the law relating circumstantial evidence has ruled that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denied the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused."
In the present case also, the chain of incident is intact which has been duly proved by the testimony of prosecution witnesses. In the statement under Section 313 Code of Criminal Procedure, 1973, accused has merely denied the incriminating circumstances and has not explained the incriminating circumstances. Therefore, as held by Hon'ble Supreme Court, mere denial to the incriminating FIR No. 37/1996 Page No. 12 of 31 circumstances adds to the chain of circumstances and bring home the charge against the accused.
17. Another argument raised by the learned counsel is that the place of occurrence in the charge has been wrongly mentioned. The particulars to be mentioned in the charge are given in Section 212 of Code of Criminal Procedure, 1973, according to which the time, place and person against whom the charge is to be framed are to be mentioned. However, Section 215 of Code of Criminal Procedure, 1973 states that no error in stating, either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Illustration (d) to Section 215 of Code of Criminal Procedure, 1973 reads as under : "(d) 'A' is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January 1882. 'A' was never charged with any murder with one and had FIR No. 37/1996 Page No. 13 of 31 heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that 'A' was not misled, and that the error in the charge was immaterial"
18. The above illustration is similar to the facts of the present case. In the said illustration, the name of the victim was wrongly mentioned in the charge. However, as the accused was never charged for the murder of any other person, but one for which the only case pending against the accused, it was held that this has not misled the accused. In the present case also, accused has been charged for theft in the house of complainant. The name of complainant and the entire address of the complainant except the House Number has been correctly mentioned in the charge. The date and time of incident alongwith the name of coaccused persons has also been correctly mentioned. It is only that the property number of the complainant is mentioned as 837 instead of A37 which seems to be a typographical error. However, accused has not been facing trial for any other such offence which has been committed at the same place, on the same day and at the same FIR No. 37/1996 Page No. 14 of 31 time. Further accused has been appearing in the Court during trial. The charge was framed in the year 1998. Thereafter, statement of accused was also recorded. Therefore from the conduct of the accused and the evidence on record, it cannot be said that accused was misled in any manner from the charge. The charge has detailed the date, time and place of incident which was sufficient for the accused to defend himself in the case during trial. Hence the said contention of the accused cannot be of any help.
19. Another argument raised by the learned counsel is that the case property was never recovered then how it can be said that the suitcase produced in the Court was the case property. As per the case of the prosecution, which has been duly established by the testimony of PW1, accused Salim was apprehended on the spot with the suitcase. PW1 has identified the said suitcase as the same which was stolen from his house. Therefore, it cannot be said that the case property was not recovered. All the articles which were stolen were not recovered but the suitcase was recovered from accused Salim at the spot immediately after the incident. FIR No. 37/1996 Page No. 15 of 31
In this behalf, reference be made to illustration (a) of Section 114 of the Evidence Act, 1872 which reads as follows : "That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
In the case of Baiju Vs. State of Madhya Pradesh AIR 1978 SC 528, it was held that recent and unexplained possession of stolen articles can form the basis of presumptive evidence leading to a finding of guilt.
In the case of Karnam Singh Uttam Singh Vs. State of Maharashtra AIR 1976 SC 1097, it was observed as under: "It is open to the Court to convict an accused by using the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the accused is open to the prosecution."
In the case of Virumal Mulchand & Anr. Vs. State of Gujrat AIR 1974 SC 334, the Hon'ble Supreme Court upheld the conviction of the appellants for the offence under Section 411 of IPC by observing as follows: "The appellants were found in possession of the goods within two days of the theft. In the circumstances, illustration 'a' to Section 114 of the Indian Evidence Act applies directly to the facts FIR No. 37/1996 Page No. 16 of 31 of the present case."
In the case of Bipin Bihari Sahu Vs. State of Orissa 1986 Crl. LJ 406, it was observed as follows: "From his evidence an inference can be drawn under S. 114 of the Evidence Act to the effect that when the stolen property, namely, the bicycle was seized from the possession of the petitioner soon after the theft was committed, a presumption can be drawn according to illustration (a) that he was either the thief or the receiver of the goods knowing it to be stolen."
In the case of Bhagwan Vs. State of Rajasthan 2001 Crl. LJ 2925, the Hon'ble Supreme Court has held as under : "Force of presumption depends upon recency of possession qua the crime. The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the Courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course such things frequently change hands".
Similar observations were made in the case of Gulab Chand FIR No. 37/1996 Page No. 17 of 31 Vs. State of Madhya Pradesh AIR 1995 SC 1598.
In the present case also, PW1 saw accused in his house when the accused was trying to escape, he was apprehended by the public. Accused was found in possession of a suitcase. The said suitcase has been duly identified by the complainant as belonging to him. Further, the accused has been unable to account for the possession of the suitcase. He was specifically put a question in his statement under Section 313 Cr.PC as to whether he claims ownership of the suitcase and he answered in negative to the same. Therefore, all the circumstances cumulatively points towards the guilt of the accused.
20. Learned Defence Counsel has also argued that co accused Raju has not been apprehended till date. It has been stated by PW3 and PW4 in their testimony that efforts have been made to apprehend coaccused Raju. However, he could not be apprehended as he has absconded. However, the fact that coaccused Raju could not be apprehended cannot substantiate the defence of accused Salim.
FIR No. 37/1996 Page No. 18 of 31
21. Learned counsel has also argued that there are contradictions in the testimonies of prosecution witnesses. It is stated that all the prosecution witnesses have deposed that it was accused Salim who was apprehended on the spot with the suitcase. However, as per the testimony of PW1 who is the complainant in the present case, accused Birju was apprehended on the spot. However, in his examinationinchief, PW1 has specifically stated that it was accused Salim who was arrested by the police at the spot. PW1 has not been crossexamined by accused Salim despite opportunity so as to render the testimony of PW1 doubtful. Even when PW1 has been crossexamined by accused Birju, he has stated that he had seen accused Birju on the second day in the police station. PW1 has stated that Birju was also present at the time of incident but he has not stated anywhere in his cross examination that accused Birju was apprehended on the spot. In fact, he has specifically stated that he saw accused Birju on the second or third day of incident. In his examinationinchief, PW1 has stated that it was accused Salim who was apprehended by the FIR No. 37/1996 Page No. 19 of 31 public on the spot. Therefore, the said contention of learned counsel that PW1 has stated that it was accused Birju who was caught red handed and not accused Salim is not tenable. Further it is settled law that minor contradictions shall not affect the case of the prosecution.
In the case of State of UP Vs. Santosh Kumar (2009) 9 CC 626, it has been held by the Hon'ble Supreme Court as under : "In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails and if on material particulars, statement of witnesses is consistent, then it cannot be discarded only because of minor inconsistencies."
In the case of Jai Shree Yadav v. State of U.P. 2004 CRI. L. J. 4826, the Hon'ble Supreme Court observed as under: "When a witness is subjected to lengthy arduous cross examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the crossexamining counsel."
In the case of Shivappa v. State of Karnataka 2008 FIR No. 37/1996 Page No. 20 of 31 CRI. L. J. 2992, it has been held that : "Minor discrepancies or some improvements also, in our opinion, would not justify rejection of the testimonies of the eye witnesses, if sthey are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court."
In the case of Bhoginbhai Hirjibhai v. State of Gujarat 1983 CRI. L. J. 1096, it was held that: "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
22. The other point raised by learned defence counsel is that as per the testimony of PW1, accused Salim has been beaten by public persons but MLC shows no injury on the person of accused Salim and MLC bears the time of 4.40 pm. The time of incident is 3.30 am on 18.1.1996. As per the case of prosecution, after the incident police arrived at the spot and apprehended accused Salim. Before police arrived at the spot, accused Salim was beaten by public persons. Therefore, it can be inferred in the normal course FIR No. 37/1996 Page No. 21 of 31 of business that after completing all the formalities and recording the statement of witnesses, accused Salim could have been taken for medical examination at 4.40 pm on 18.1.1996 itself. Secondly, though the MLC does not specifically give an opinion that injuries were simple or grievous in nature but there are following observations on the MLC of accused Salim :
1. Redness left side eye.
2. Swelling on the left side face below lower eye lid.
3. Abrasions on left knee.
4. Swelling on left foot including the left ankle.
5. Tenderness on forehead.
These observations clearly show that accused Salim was beaten by public persons. Therefore the testimony of PW2 has been duly corroborated by the MLC of accused Salim.
23. It has also been stated that there has been contradiction in the testimony of police witnesses. DD Number has not been correctly mentioned and it has not been mentioned by PW3 and PW4 as to how they reached at the spot. There have been no photographs of broken glass to show house breaking. Firstly there are no patent contradiction in the testimonies of PW3 and PW4. FIR No. 37/1996 Page No. 22 of 31 Further it is settled law that faulty investigation shall not be the sole criteria for acquittal of accused. The testimony of all witnesses, taken together, bring home the guilt of the accused persons.
In the case of Abu Thakir & Ors. Vs. State AIR 2010 SC 2119, it has been held as under : ""We may have to deal with yet another submission made by learned senior counsel for the appellants that the investigation was not fair as there were many missing links in the process of investigation. This submission was made by the learned counsel contending that the investigation does not reveal as to how the Investigating Officer came to know about the presence of PWs 2 to 4 at the scene of occurrence and for recording their statements in this regard. This Court in State of Karnataka Vs. K. Yarappa Reddy (1999) 8 SCC 715, held that "even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of Investigating Officers ruling the roost. ... Criminal justice should be made a casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit the Investigating Officer's suspicious role in the case". The ratio of the judgment in that case is the complete answer to the submission made by the learned senior counsel for the appellants.""
24. Another argument raised by the learned counsel for accused Salim is that coaccused Raju has deliberately been left by FIR No. 37/1996 Page No. 23 of 31 the IO. He was very much available but he IO has not arrested him and disclosure statement placed on record is not of accused Salim. Regarding the conduct of IO with respect to coaccused Raju, it has already been stated that even if averments of Ld. Counsel are taken to be correct, then accused Salim could move an appropriate application before the competent authority to take appropriate action against the IO, but that does not have any bearing on the merits of the case against accused Salim. Any lack on the part of the IO with respect to arrest of coaccused Raju shall not give any benefit to accused Salim when eyewitnesses have deposed against him and recovery has been effected from the accused on the spot itself. With respect to disclosure statement, as per the provisions of Section 26 of Evidence Act, any statement made to any police officer by any person while in custody is not admissible. Therefore, the said disclosure statement cannot be considered by this Court. Hence it is not relevant whether the said disclosure statement is of the accused or not. Though the said disclosure statement has been duly proved by PW1 as Ex.PW1/D and he has stated that the FIR No. 37/1996 Page No. 24 of 31 disclosure statement of accused Salim was recorded in his presence. The prosecution has duly proved, by the testimony of PW1 that accused Salim was present in the house of the complainant and had tried to take away one suitcase. He was apprehended by the public and thereafter handed over to police. Suitcase was recovered from accused Salim on the spot. All the PWs have duly identified the accused and case property recovered from the accused. PW1 and 2 have not been crossexamined by the accused despite repeated opportunities. Hence prosecution has proved the guilt of the accused for offence under Section 380 of Indian Penal Code.
OFFENCE UNDER SECTION 457 OF INDIAN PENAL CODE.
25. In order to prove the guilt of accused for offence under Section 457 of Indian Penal Code, the prosecution has to prove that accused has committed lurking house trespass by night or house breaking by night in order to commit any offence punishable with imprisonment. Enhanced punishment is to be given if the offence purported to be committed is theft. Lurking house trespass by night FIR No. 37/1996 Page No. 25 of 31 and house breaking by night has been defined in Section 444 and 446 of Indian Penal Code.
26. As per the case of the prosecution, the accused was found committing theft of certain articles in the house of complainant in night. Accused was caught red handed on the spot by the public persons and a suitcase was recovered from him there and then. Ld. Counsel for accused has argued that there has been no evidence or photographs of broken glass to show that accused has committed house breaking. This is right that prosecution has not alleged there was house breaking by night. However, Section 457 of Indian Penal Code does not punishes only house breaking by night but also lurking house trespass by night. For the sake of reference, Sections 442, 443 and 444 of Indian Penal Code are reproduced as under : Section 442House Trespass - 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 "housetrespass"
Section 443 Lurking house Trespass - Whoever commits house trespass having taken precautions to conceal such house FIR No. 37/1996 Page No. 26 of 31 trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house trespass".
Section 444 - Lurking House trespass by night -
Whoever commits lurking housetrespass after sunset and before sunrise, is said to commit "lurking housetrespass by night".
27. A cumulative reading of all the Sections would show that any person who commits criminal trespass by night in any building, tent or vessel used by any person as a human dwelling by taking precautions so as to conceal the said house trespass after sun set and before sun rise is stated to have committed house trespass by night. In the present case, as per the testimony of PW1, accused Salim was found committing theft in the house of complainant at around 3.30 am in the night. Accused persons have taken all the precautions to conceal their ingress in the house of complainant so as to facilitate act of theft. Hence, as already discussed above, the testimonies of the prosecution witnesses cannot be discarded for minor contradictions. No defence has been raised by the accused. The only argument raised by the learned counsel is that there have been no photographs of broken glass. FIR No. 37/1996 Page No. 27 of 31 However, this is not the case of prosecution also that there were certain broken glasses and accused persons have committed house breaking by night. Lurking house trespass by night has been duly proved by the testimony of PW1. As discussed above, the accused persons have committed lurking house trespass by night for the purpose of committing theft and hence prosecution has successfully proved the guilt of accused Salim beyond reasonable doubt for offence under Section 457 of Indian Penal Code.
28. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution duly proved its case against accused Salim beyond reasonable doubt. He is accordingly convicted for offences under Sections 457 and 380 of Indian Penal Code.
(Sugandha Aggarwal) Metropolitan Magistrate3 (West) :Delhi Announced in open Court on May 03, 2011.
FIR No. 37/1996 Page No. 28 of 31
IN THE COURT OF MS. SUGANDHA AGGARWAL:
METROPOLITAN MAGISTRATE (WEST3) : DELHI.
State Vs. Saleem
FIR No. 37/1996
PS Nangloi
ORDER ON SENTENCE
12.5.2011
Present: Learned APP for the State.
Convict with counsel.
Arguments on the quantum of sentence heard.
Ld. APP submits that maximum punishment should be awarded to the convict as he has committed lurking house trespass by night with intention to commit theft of articles belonging to the complainant and he was caught red handed while doing so.
Counsel for convict submits that the convict is sole bread earner of his family/ It is further submitted that the convict has no other previous involvement in any other offence and he is regularly appearing in the Court during trial. It is stated that the convict has already undergone custody for 22 days. On these basis, it is stated that lenient view shall be taken.
I have heard both the parties on the point of sentence. The convict has been facing the ordeal of trial since 1996. He is FIR No. 37/1996 Page No. 29 of 31 gainfully employed. He does not have any criminal background. The convict enjoy sound reputation in the society. He do not have any other criminal record besides the present case. Regard must be had to the social background of the convict and the social milieu and circumstances in which the convict is staying. The convict appear to have a fixed place of abode. His antecedents are unblemished. He is sole bread earner and is maintaining his family. He appear to be leading stable life. Sentencing the convict to jail may have an undesirable and deleterious effect on the character of the convict who is likely to come into contact with hardened criminals. In view of the nature of the offence and character of convict and the attendant and surrounding circumstances, this is a preeminently fit case for reformation and rehabilitation of the convict rather than his condemnation to prison.
Hence for the offence under Section 457 of Indian Penal Code, 1860, the convict is sentenced to imprisonment for the period already undergone and to pay fine of Rs.1,000/. In default of payment of fine, convict shall undergo SI for 10 days. For the FIR No. 37/1996 Page No. 30 of 31 offence under Section 380 of Indian Penal Code, 1860, the convict is sentenced to imprisonment for the period already undergone and to pay fine of Rs.500/. In default of payment of fine, convict shall undergo SI for 05 days. Fine paid. Bail bonds are cancelled. Surety is discharged. Original documents of convict and surety be released to them after cancellation of endorsement, if any. A copy of the judgment and order on sentence be supplied to the convict free of costs. File be consigned to record room after due compliance.
(Sugandha Aggarwal) Metropolitan Magistrate Tis Hazari Courts : Delhi Announced in open Court on May 12, 2011 FIR No. 37/1996 Page No. 31 of 31