Delhi District Court
3.Title State vs . Khursheed @ Bhondu on 6 June, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 372/2008, PS Bhajanpura
2.Unique Case no. 460415/2015
3.Title State Vs. Khursheed @ Bhondu
3(A).Name of complainant Ms. Shabana Naaz
D/o Late Sh. Shabbuddin
R/o Gali no. 17, Chand Bagh, Main Nala
Road, AlLibaz Building, Delhi110094
(previously at H. No. 283, Gali no. 26, near
Madina Masjid Mustafabad, Delhi.
3(B).Name of accused Khursheed @ Bhondu
S/o Sh. Khalil Ahmed
R/o H. No. C118, Gali no. 19, North
Ghonda, Bhajanpura, Delhi.
4.Date of institution of chargesheet 31.03.2009
5.Date of Reserving judgment 27.05.2023
6.Date of pronouncement 06.06.2023
7.Date of commission of offence 28.09.2008
8.Offence complained of U/s 457/380 IPC
9.Offence charged with U/s 454/380/411 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted U/s 454/380 IPC
Offence under Section 411 IPC compounded
by the parties on 04.11.2022
12. Date of receiving of judicial file 31.03.2009
in this court
Argued by :1. Ms. Deepika Singh, Ld. Counsel for the accused.
2. Ms. Asha, Ld. LAC for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Ms. Shabana Naaz stating that her father in the year 1987 State Vs. Khursheed @ Bhondu Page 1 of 21 FIR No. : 372/2008 had taken the shop in the ground floor of C118, Gali no. 20, North Ghonda, Delhi from Khalil Ahmad at Pagdi for a sum of Rs. 20,000/ and a shop of bakery was run in the said shop. Initially Rs. 300/ was paid as rent which was subsequently increased to Rs. 650/. However, on 16.08.2007 her father expired. Thereafter, till 21.02.2008, the said shop remained in the possession of her Chacha Khalid. Thereafter, she locked the said shop with two locks and material of the bakery shop was kept inside the shop when it was locked. However, on 26.09.2008, owner of the shop i.e. Khursheed @ Bhondu S/o Khalil Ahmed came to her house and in front of her mother, threatened her to vacate the shop failing which, he stated that he shall not let her do any work in the said shop. Thereafter on 28.09.2008, complainant alongwith her mother Aasma Begum went to the said shop at about 01.45 p.m. and found that both the locks of the said shop were broken. Hence, she filed complaint in this regard on 29.09.2008 against accused Khursheed @ Bhondu alleging that he has broken the locks of shop and removed the material from the shop. On the basis of the complaint, FIR bearing no. 372/2008 PS Bhajanpura was registered u/s 457/380 IPC. During investigation, alleged stolen property was recovered on 29.09.2008 from the shop of accused Khursheed @ Bhondu. Hence, after completion of investigation, chargesheet was filed u/s 457/380/411 IPC.
2. On 31.03.2009, cognizance was taken and accused was summoned for offence under Section 457/380/411 IPC. Thereafter, on 15.01.2019, charge was framed against the accused for the offences punishable u/s 454/380 IPC and 411 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution had named 10 witnesses. However, accused did not dispute the registration of FIR vide DD no. 25 A dated 29.09.2008 which were exhibited as Ex-D1 and Ex. D2 respectively. Accused also did not dispute his arrest vide arrest memo Ex. PW4/A and personal search memo Ex. PW4/B. In view of statement of accused u/s 294 Cr.P.C., the corresponding State Vs. Khursheed @ Bhondu Page 2 of 21 FIR No. : 372/2008 witnesses were dropped.
4. Smt. Shabana Naaz was examined as PW-1. She has deposed that she was previously residing alongwith her family at House No. 283, Gali No. 26, Near Madina Masjid, Old Mustafabad, Delhi. She had been residing there till 2011. Thereafter, she got shifted to her matrimonial house after her marriage. She further deposed that in the year, 2008 her father Late Sh. Sahabuddin had taken the shop located at house No. C118, Gali No. 20, North Ghonda, Delhi on lease from Khalil Ahmed for a consideration of Rs.20,000/ pagri and they used to give a rent of Rs.300/ initially, which was subsequently raised upto Rs.700/ per month. On 16.08.2007, her father Sahabuddin expired. Thereafter, for two months her uncle Khalid @ Pappu taken care of the said shop and after that they kept the shop locked after getting articles / apparatus and other property pertaining to the bakery placed inside the said shop. Thereafter, on one day, in the year 2008, accused Khurshid @ Bhondu (present in the court was correctly identified by the witness) told her to vacate the shop or he would not allow them to run the said shop. Thereafter, on one day though she could not remember the exact date and month in the year 2008 she alongwith her mother Asma Begum came to her aforesaid shop where she saw that both the locks were broken and the property / articles pertaining to the bakery i.e. Tub, wrecks, weighting machine, counter, cylinder, Chhad, Trays, Chimney Pipe, Box, Cycle, Iron Pattal Etc were missing though she was unable to remember the exact count and description of property due to long lapse of time. She further deposed that she reported the incident to the police though her statement could not get recorded. Then, ASI Baldev Raj came there and her statement Ex.PW1/A got recorded. Thereafter, she had shown the spot to the police where the present incident had occurred and the site plan Ex.PW1/B got prepared in her presence. After one or two days some of the aforesaid stolen articles / property were recovered from the shop of the accused and seized vide seizure memo Ex.PW1/C which was earlier mark X. Thereafter, she got released the aforesaid recovered articles after State Vs. Khursheed @ Bhondu Page 3 of 21 FIR No. : 372/2008 furnishing supurdginama Ex.PW1/D. However, she did not produce the aforesaid articles and stated that she had already disposed off due to need of money for her marriage. Photographs of the same were also not placed on the record. She stated that she had given / handed over copy of the rent / payment receipts to the IO which are Ex.PW1/E (colly. 6 ). Thereafter, she has deposed that she cannot produce the original rent receipt as the same might have been destroyed or misplaced. Thereafter, Ld. APP for the State put leading questions to the witness as she was resiling from her previous statement given to police. She then admitted that in the year 1987 her father Late Sahabuddin took the shop No. C118, Gali No. 20, North Ghonda, Delhi on pagri of Rs.20,000/ from Khalil Ahmed. She further admitted that on 26.09.2008 accused Khurshid @ Bhondu came to her house where her mother Asma was also present and told her that Dukan Khali Kar Do Nahi To Mein Dukan Par Kaam Nahi Karne Dunga. She further admitted that on 28.09.2008 she alongwith her mother visited her shop at around 1.45 pm where she saw that both the locks of her abovesaid shop were broken and checked the shop where the articles / property were stolen. She had told to the police that the accused had committed theft in their shop and removed the property from there. She had reported the incident to the police on the said day though due to non cooperation of police, her FIR was not registered. Thereafter, she approached the senior police official and on the next day her statement got recorded and present case, FIR got registered. She further admitted that she had told to the police that the accused had committed the theft of property from her shop and kept in his shop located at C117, Gali No.19, North Ghonda, Delhi and when the said shop was opened, from there, the aforesaid stolen property articles were visible and recovered accordingly. She further admitted that the aforesaid stolen property was recovered from the possession of the accused or at his instance which is 245 Iron Pattal, weighting machine, 4 tub, 5 round tubs, one wreck, 3 wooden counter, 2 gas cylinders, 1 cycle, 45 small trays, 1 iron box, 4 iron rod / sticks, 5 small knife, 8 piece chimney pipe, 1 patra, 1 belcha, 5 bamboo ladri. She further admitted that due to State Vs. Khursheed @ Bhondu Page 4 of 21 FIR No. : 372/2008 long lapse of time as the matter pertain the year 2008 she could not recall the complete set of facts during her examination in chief and she answered the same when the same was put to her. She was cross examined by Ms. Asha Kumari, Ld. LAC for the accused wherein she admitted that she have not placed any documents regarding the shop taken on rent as well as on pagri except rent receipt of the said shop. She further admitted that she has not placed the original rent receipt on record. The said bakery was run with the name of Shabana Bakery. There was no MCD licence of the said bakery. 45 workers were working in the said bakery including Khalid, Shiraj and the other workers whose names were not known to her. She stated that Khalid and Shiraj were her relatives. She denied the suggestion that the said bakery run by her was illegal. She admitted that the owner of the said bakey was Khalil (father of accused) and she locked the said bakery with consent of the LRs of Khalil. She further denied the suggestion that she had not mentioned the said fact to the police of locking the bakery with the consent of LRs. of Khalil. She admitted that at around 01:45 pm she reached at the shop. She informed the police telephonically at 09:30 am. She was unable to tell the phone number through which she called to the police and whether it was her to her mother's. She came to know about the theft in the said shop at around 09:00 am. She further deposed that she had not done any videography of the said incident but taken the photographs. She further admitted that she did not take permission from the court to sell out the case property which was released on supurdginama. Police Official reached at the spot at around 02:00 pm. She stated that police had not recorded her statement as well as her complaint at the spot. She further admitted that the police official had not taken photographs of the spot but the said photographs which were placed on record were taken by her own photographers i.e. Gopal Lab. She denied the suggestion that she had created the false evidence against the accused to implicate the accused in the present case.
State Vs. Khursheed @ Bhondu Page 5 of 21 FIR No. : 372/2008
5. Smt. Aasma Begum was examined as PW 2. She has deposed that in the year 2008, she was residing at House no. 283, Gali No. 26, Near Madina Masjid, Old Mustafabad, Delhi. In the year 2008 she had a shop located in the area of Noor eIlahi, Ghonda on pagri for a consideration of Rs.20,000/ by her late husband, namely, Sh. Sahabuddin from Khalil Ahmed. She did not remember the exact date of incident though she stated that at the time of incident, a dispute was going on between her daughter and accused Khursheed @ Bhondu regarding vacating of the shop in question. She further stated that she came to know that accused had broken the lock of her aforesaid shop and committed theft of the property / article lying there. Then she alongwith her daughter Shabana Naaz visited the aforesaid shop where the locks of the same already broken and property / articles lying there missing. The matter was reported to the police and the aforesaid stolen property / articles got recovered from the shop of accused Khursheed @ Bhondu (accused present in the court and was correctly identified by the witness). Thereafter she joined the investigation when the said stolen property got recovered and seized vide seizure memo Ex.PW1/C. However, she was unable to tell the exact count as well as description of the aforesaid stolen / recovered property due to long lapse of time. Ld. APP for the State then put leading questions to the PW 2 as she was resiling from her previous statement wherein she admitted that the aforesaid shop which was taken on lease / pagri bearing address C118, Gali No. 20, North Ghonda, Delhi from Khalil Ahmed though she could not tell whether the same was taken in the year 1987 by her late husband Sahabuddin. She stated that they used to run a business of bakery in the said shop. She admitted that her husband Sahabuddin got expired in the year 2007. She further admitted that on 26.09.2008 landlord accused Khursheed @ Bhondu came to her house where her daughter Shabana Naaz was also present and told that Dukaan Khali Kar Do Nahi To Mein Dukaan Par Kaam Nahi Karne Dunga. She further deposed that she cannot say whether on 28.09.2008 she visited her shop as she was illiterate and not able to recall the exact date of State Vs. Khursheed @ Bhondu Page 6 of 21 FIR No. : 372/2008 incident due to long lapse of time. But stated that she alongwith her daughter visited the aforesaid shop where she found that locks were broken and property / articles were missing. She further admitted that after getting the matter reported police came there and she alongwith her daughter Shabana Naaz joined the investigation and it was told to the police that the stolen property was kept by accused in his shop located at C117, Gali No. 19, North Ghonda, Delhi. She further admitted that PW Aas Mohd. joined the investigation. She further admitted that due to long lapse of time as the matter pertain the year 2008 she could not recall the complete set of facts during her examination in chief and she answered the same when the same was put to me. In her cross examination she has deposed that she does not have any knowledge whether any document pertaining to lease agreement regarding aforesaid shop was given to the police or not. The bakery business used to be run in the name of Shabana Bakery. She conceded that she has no knowledge regarding the business of bakery and whether any licence was needed or not as she is illiterate. She denied the suggestion that deliberately she was not answering the question as she was running a illegal business. She further conceded that no complaint with respect to threat of accused to vacate the shop was reported to the police prior to the present incident. She stated that the locks were installed in the said shop without the knowledge of landlord. She could not recall exact time but stated that she visited the said shop after noon time when she found the locks were broken. She further stated that she came to know about the theft when she reached at the shop. She admitted that police had recorded her statement though was unable to tell when and where the same got recorded.
6. Sh. Aas Mohd. was examined as PW 3. He has deposed that on the day of incident, Smt. Aasma Begum called him and he alongwith her visited police station. He inquired from her regarding reason to visit the police station, and was informed that accused Khursheed @ Bhondu had committed theft in her shop and removed the property / articles lying there. The shop of Aasma Begum was State Vs. Khursheed @ Bhondu Page 7 of 21 FIR No. : 372/2008 located in front of his house where he used to reside. He did not know whether the stolen property was recovered or not. (Accused Khursheed @ Bhondu present in the court was correctly identified by the witness). Thereafter, Ld. APP for the State put leading questions to the witness as he was resiling from his previous statement given to police where he has admitted that he had been residing at the address C132, Gali No. 19, North Ghonda, Delhi. He further deposed that he did not remember if the date when he accompanied Aasma Begum to the police station was 29.09.2008 to join the investigation. He denied the suggestion that on 29.09.2008 he joined the investigation along with 23 public persons though he said that 23 public persons refused to join the investigation. He denied that ASI Baldev told him that the articles / property pertaining to bakery business lying inside the shop No. C117, Gali No. 19, North Ghonda, Delhi belonging to the accused were actually belonging to Shabana Naaz and was stolen from her shop. (Confronted from the portion of A1 to A2 of his statement mark PW3/A where it is so recorded). He further denied the suggestion that Shabana Naaz told him that the accused had broken the locks of her shop and removed the aforesaid property from there and kept in his aforesaid shop located at C117, Gali No. 19, North Ghonda, Delhi (Confronted from the portion of A3 to A4 of his statement mark PW3/A where it is so recorded). He further denied that the articles as 245 Iron Pattal, weighting machine, 4 tub, 5 round tubs, one wreck, 3 wooden counter, 2 gas cylinders, 1 cycle, 45 small trays, 1 iron box, 4 iron rod / sticks, 5 small knife, 8 piece chimney pipe, 1 patra, 1 belcha, 5 bamboo lakdi were recovered from the shop of the accused and taken into police possession which were seized vide seizure memo Ex.PW1/C. (Confronted from the portion of A5 to A6 of his statement mark PW3/A where it is so recorded). Thereafter, attention of the witness drawn towards the seizure memo Ex.PW1/C on which he denied his LTI at point C. He further denied the suggestion that he is not deposing the true fact before the court or he is deliberately deposing falsely to protect the accused from criminal prosecution. He was not cross examined by Ms. Asha Kumar, Ld. LAC for the State Vs. Khursheed @ Bhondu Page 8 of 21 FIR No. : 372/2008 accused.
7. Retired SI Suresh Hiwarkar was examined as PW 4. He was the Duty Officer and has deposed that on 28.09.2008, his duty hours were from 08:00 am to 04:00 pm at the PS and at about 02:00 pm he received the call regarding theft from house at Gali No. 20, North Ghonda, Delhi and the same was marked to ASI Baldev Raj through phone. Thereafter, on 01.11.2008 investigation of the present case was marked to him and he went to Karkardooma Court and thereafter, he formally arrested the accused Khursheed in the present case vide arrest memo Ex.PW4/A and got personally searched Ex.PW4/B. He recorded the disclosure statement of the accused Ex.PW4/C. Thereafter, he handed over the case file to MHCR. Accused Khursheed present in the court was correctly identified by the PW 4. He was cross examined by Ms. Asha Kumari, Ld. LAC for the accused wherein he stated that at about 02:00 pm he received the call. He denied the suggestion that the accused was falsely implicated in the present case.
8. Retd SI Baldev Raj was examined as PW 5. He has deposed that on 28.09.2008, he was posted at PS Bhajanpura as SI and was on emergency duty from 8:00 a.m to 8:00 p.m. On the said day, he was in the area of PS Bhajanpura. Duty Officer ASI Suresh Hiwarker informed him regarding the investigation vide DD No. 9A dated 28.09.2008 which is Ex. P1 pertaining to theft after breaking lock at C 118, Gali no.20, North Ghonda, Delhi. Investigation was marked to him vide said entry. Thereafter, he alongwith HC Rameshwar reached at the aforesaid spot where the complainant Sabana Begum alongwith her mother Asma Begum, met him nad told him that accused Khurshid @ Bhondu committed theft of bakery articles/Apparatus after breaking lock of her shop and has hid the same in his shop. Thereafter, complainant left the spot and told that she would visit the PS and will give her complaint to the police. He kept the same pending as the complainant did not given her complaint and deliberately told the she would give her complaint later. He further deposed that on the next date i.e 29.09.2008, he alongwith HC Rameshwar again visited the spot where the complainant State Vs. Khursheed @ Bhondu Page 9 of 21 FIR No. : 372/2008 Sabana Naaz met him. He thereafter, recorded her detailed statement Ex. PW1/A. On the said statement, he prepared rukka Ex. PW5/A and handed over the same to the HC Rameshwar with the direction to get the case registered at PS Bhajanpura. After getting the case registered, HC Rameshwar came back at the spot and handed over the original rukka and copy of FIR to him for further action. He then inspected the spot at the instance of complainant when the present incident had occurred and prepared site plan Ex. PW1/B. Thereafter, he inquired regarding whereabouts of accused Khursheed, however he was not found. On further investigation, the complainant further told that accused had hidden the aforesaid stolen article at his shop i.e. shop at ground floor of address C117, North Ghonda, Delhi. He further deposed that he briefed 34 public persons and requested then to join the investigation. However, none had agreed and left the spot. Thereafter, he proceed at the instance of complainant to the aforesaid premises. One person namely Aas Mohd S/o Mohd Hamid met him near the street and was joined in the investigation. Thereafter he inquired him and he told that one or two days back he had seen the accused Khursheed @ Bhondu committing theft at the shop of complainant Sabana Naaz and moving the same into his shop at the aforesaid address. In the meantime the complainant also told Aas Mohd that accused had committed theft at her shop and moved the property to his shop. Thereafter, he at the instance of complainant and her mother alongwith Aas Mohd and HC Rameshwar reached at the said shop of the accused where shutter of said shop was opened and bakery articles/appartus i.e tubs, big and small tray, stove etc total articles which were mentioned as per seizure memo from serial no. 1 to 16 were lying there which were identified by the complainant that the same belong to her. Accordingly, inventory of the same was prepared at the instance of complainant and the aforesaid articles of the property were seized vide seizure memo Ex. PW1/C. The said seizure memo also signed by the complainant, her mother, Aas Mohd and HC Rameshwar. Thereafter, the aforesaid article were sent to PS Bhajanpura via tempo in safe custody of HC Rameshwar. Thereafter, he got recorded the supplementary State Vs. Khursheed @ Bhondu Page 10 of 21 FIR No. : 372/2008 statement Marked P3/A of the complainant and Asma Begum as well as Aas Mohd at the spot. Thereafter, the complainant as well as prosecution witness were released and came to the PS. The aforesaid case property/stolen property was deposited in the malkhana. Thereafter, statement of HC Rameshwar was recorded and he was relieved thereafter. He then searched for the accused, however he could not found. He further deposed that on 25.10.2008, the aforesaid stolen articles/case property was released to the complainant vide superdari order passed by the concerned Court after furnishing the superdarinama Ex. PW5/B. In the meantime, PW5 took official leave and submitted the case file to MHC(R). The further deposed that on 07.11.2008, he resumed his official duty and continue further investigation of the present case. During his absence ASI Suresh Hiwarker was deputed as IO for the investigation of the present case who formally arrested the accused Khursheed @ Bhondu vide arrest memo already Ex. PW4/A from KKD Court Complex, Delhi. Thereafter he got to know that the complainant/victim had entered into a compromise with the accused Khursheed @ Bhondu and settled the matter. He inquired from complainant to ascertain whether any compromised was done between her and accused and was told that she had settled the matter with accused for a consideration of Rs.1,70,000/ and vacated the shop. Thereafter he got recorded her statement with respect to same which is Mark PW5/C. After completion of the investigation of the present case, he got prepared the chargesheet and submitted before the concerned Court for further action. Photographs of the case property were not placed on record. Court question was put to the PW 5 that whether any photographs of the aforesaid case property were taken before releasing the same. However, he relied that same that no photographs of case property were taken as he was not aware whether any photograph should be taken prior to release the same to the claimant. He was cross examined by Ms. Asha Kumari, Ld. LAC for accused, wherein he deposed that Duty Officer ASI Suresh Hewarker informed him regarding the PCR call vide DD No. 9A dt. 28.09.2018 at about 2:15 p.m. He reached at the spot State Vs. Khursheed @ Bhondu Page 11 of 21 FIR No. : 372/2008 alongwith the help of HC Rameshwar at about 2:25 p.m. Crowd had already gathered at the spot. 56 persons were present there. No photographs and videography of the spot was done by him on that day. The complainant had not given her complaint of the said incident on 28.09.2008 due to some urgent work. He further deposed that he had not made any entry in writing regarding not giving of statement by complaint on 28.09.2018. Vol. She had stated that she will give her statement on the next date. He further deposed that on 29.09.2008, he left the PS for the spot at about 6:30 p.m for investigation of DD no. 9A. He had not specifically made any DD entry regarding the departure for investigation except of DD No. 9A. He had done documentation work of the case near the shop on bench in the gali at about 7:15 p.m under the shop light/street light. He admitted that he had not shown any street/shop light in the site plan Ex. PW1/B. He had handed over the rukka to HC Rameshwar at about 8:20 p.m and he returned back to the spot at about 09:30 p.m alongwith copy of FIR and original rukka. He searched the accused at 1 st floor and roof of the house of the accused on 29.09.2018 and on two other dates also and through sister of the accused namely Khushi who said she has no knowledge about the case. He further deposed that the complainant on 29.09.2018 gave him information about the stolen articles. He denied the suggestion that he had not taken any search warrant to search the property of accused as no recovery has been effected but the recovery was planted. He admitted that no bill regarding the articles which said to be stolen by the complainant has been produced to him by the complainant on that day. He further deposed that on 28.09.2008, the complainant did not give him any details of the stolen articles. But stated that "bakery banane ka saman chori hua hai". He has denied the suggestion that Aas Mohd gave his statement on the instance of the complainant. He denied the suggestion that recovery is planted upon the accused.
9. Retd HC Rameshwar Dass was examined as PW 6. He has deposed on similar lines as PW 5 and supported the case of prosecution. In his cross examination, State Vs. Khursheed @ Bhondu Page 12 of 21 FIR No. : 372/2008 he has deposed that IO received the DD number 9A dt. 28.09.2008 at about 3:00 to 4:00 p.m. He left the PS alongwith the IO for the spot at about 10:30 a.m on feet. He did not make any departure entry to left the PS in respect of DD No. 9A. He reached at the spot within 15 minutes. He has admitted that spot is a residential area but no crowd was gathered at spot. He had stated that IO inquired from 2-3 person at the spot but could not tell the name and addresses of those persons to whom IO inquired. He stated that IO did not take the photograph of the spot. He has denied the suggestion that he did not join the investigation alongwith the IO. He has further denied that all the proceeding were done while sitting at the PS.
10. HC Sachin was examined as PW 7. He has deposed that case property was deposited in the malkhana by the IO ASI Balbir vide MUD o. 2156/2008 and produced the certified copy of register no. 19 which is Ex. PW7/1. In his cross examination, he deposed that he has no personal knowledge of the case as he ws in the MHC(M) on the said time.
11. Statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C was recorded on 25.05.2023 wherein he denied the allegations in toto. He stated that he does not wish to lead defence evidence and has been falsely implicated in the present case. Thereafter, matter was fixed for final arguments.
12. Final arguments were addressed by Ld APP for the state and by Ld. LAC Ms. Asha Kumari on behalf of accused. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
State Vs. Khursheed @ Bhondu Page 13 of 21 FIR No. : 372/2008
13. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law. Now, theft is defined under section 378 IPC and theft in dwelling house is defined under section 380 IPC. Both the provisions are reproduced hereunder:
Section 378 IPC: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 380 IPC: Theft in dwelling house, etc.--Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
14. From the aforesaid definition it is clear that the essential ingredients of theft are:
a) Moving of moveable property out of possession of a person
b) Absence of consent of the person
c) Dishonest intention in so moving and at the time of moving
15. A person can be said to have dishonest intention if in taking the property it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It is further clear that the gain or loss contemplated need not be a total acquisition or total deprivation. It is enough if it is temporary retention of the property by the person so gaining or temporary keeping out of property from the person legally entitled. Hence, theft under Indian Penal code is different from English Law of larceny which contemplates permanent gain or loss (Ramesh Chander Sanyal Vs. Hiru Mondal (1890) 1LR 17 Cal 852 relied upon). Further, theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling is an aggravated form of theft because it intimidates causes fear to the people living in the house. Thus, State Vs. Khursheed @ Bhondu Page 14 of 21 FIR No. : 372/2008 for the offence punishable under section 380 IPC, the following facts are required to be proved by the prosecution:
a) Moving of articles out of possession of complainant
b) Such moving was without consent of complainant
c) Accused had dishonest intention in such moving
d) Articles were moved out of dwelling house of complainant
16. Now with respect to the offence of house trespass, the relevant sections are reproduced hereunder:
441. Criminal trespass.: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"
442. House trespass.: Whoever commits criminal trespass by enter- ing into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house- trespass".
Explanation. The introduction of any part of the criminal tres- passer's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass: Whoever commits house-trespass having taken precautions to conceal such house-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"
444. Lurking house-trespass by night: Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit "lurking house-trespass by night"
445. House breaking-A person is said to commit "house-breaking"
who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say-
State Vs. Khursheed @ Bhondu Page 15 of 21 FIR No. : 372/2008 First.-If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly.-If he enteres or quits through any passage not intended by any erson, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly.- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly.-If he enters or quits by opening any lock in order to the committing of the house-trepass, or in order to the quitting of the house after a house-trespass.
Fifthly.- If he effects his entrance or departure by using criminal force or committing an asault or by threatening any person with assault.
Sixthly.-If he enters or quits by any passae which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Explanation.-Any out-house or building occupied with a house, and between which and sush house there is an immediate internal communication, is part of the house within the meaning of this section.
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
17. From the above, it is clear that intention to commit an offence is an essential ingredient. Mere occupation even if illegal cannot amount to criminal trespass(1983 CRI. L. J. 173 Kanwal Sood v. Nawal Kishore relied upon). Intention to insult or annoy person in possession of property is essential ingredient.Criminal trespass would also cover act of unlawfully remaining in property belonging to another - But such act of State Vs. Khursheed @ Bhondu Page 16 of 21 FIR No. : 372/2008 remaining in property of another would be criminal trespass only if accompanied by criminal intent. Further if there is no evidence of criminal trespass, no offence of house trespass could be said to be established. It is also important that complainant must be in unquestionable possession of property at time of trespass alleged (1996 CRI. L. J. 256 State of Goa v. Pedro Lopes).
18. The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when S. 441 Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something State Vs. Khursheed @ Bhondu Page 17 of 21 FIR No. : 372/2008 else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry. (AIR 1964 SUPREME COURT 986 "Mathri v. State of Punjab" relied upon).
19. Coming to the facts of the present matter, it is observed that there are various missing links in the case of the prosecution. Perusal of testimony of PW 1 shows that she did not produce the original rent receipts of the shop in question i.e. shop at C118, gali no. 20, North Ghonda, Delhi. She only produced the photocopy of the rent receipts which are Ex. PW1/E (colly.6). She stated that she cannot produce the original receipts as the same might have been destroyed or misplaced. In the absence of original rent receipts, it cannot be held beyond doubt that the shop was in possession of the complainant on 28.09.2008. It is pertinent to note that the shop in question is stated to be taken on rent by the father of the complainant from the father of accused. Therefore, in the absence of the rent receipts and proof of tenancy, the accused would have right to access the said property. Moreover, the testimony of the complainant is not consistent. In the original complaint, it was stated that the property was taken on rent by the father of the complainant in the year 1987 but at the time of deposition before the court, in the examination in chief, PW 1 stated that the property was taken on rent in the year 2008. Therefore, the version of the complainant does not inspire confidence. It is also pertinent to note that while PW 1 has stated that locks were put on the shop in question with consent of landlord, her mother PW 2 has not corrobated her and stated that locks on the shop were put without the consent of landlord. In appreciating a case based on circumstantial evidence, it is well settled that one circumstance by itself may not unerringly point to the guilt of the accused and it is the cumulative result of all the circumstances which are to be seen. Thus, there must be a chain of evidence where no reasonable State Vs. Khursheed @ Bhondu Page 18 of 21 FIR No. : 372/2008 ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused. In Bodh Raj V. State of Jammu & KashmirAIR 2002 SC 3164, Apex Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fully proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency
d) That the circumstances should, to a moral certanity , actually exclude every hypotheis expect the one proposed to be proved.
20. However, chain of circumstances is incomplete in the present matter. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. However, the circumstances are not of conclusive nature and tendency pointing towards the guilt of accused. Further, it is the case of the prosecution that PW 3 Aas Mohd. had told the IO that he had seen the accused entering in the shop of the complainant and removing the articles from the said shop into his own shop. However, PW 3 in his examination in chief has stated that he was informed by the mother of the complainant regarding the present matter and it was the mother of the complainant who had informed him that accused Khursheed had committed theft in the shop of her daughter. Therefore, his evidence in this regard is heresay evidence and cannot be relied upon. None of the prosecution witnesses have deposed that they saw accused entering in the shop of the complainant and removing the articles from there. Additionally, it is pertinent to note that the IO has deposed that on State Vs. Khursheed @ Bhondu Page 19 of 21 FIR No. : 372/2008 28.09.2008 he received intimation about the present matter and thereafter he visited the spot and met the complainant. But the complainant did not give the statement on said date and stated that she has some urgent work. But no such urgency which caused the delay in giving the statement has been brought to the notice of the court. This delay in giving the statement raises doubt on the prosecution version especially since it is not in dispute that both the parties were known to each other and had a dispute pending regarding the shop in question. Therefore, I find that prosecution fails to prove that the complainant was in possession of shop at C-118, Gali no. 20, North Ghonda, Delhi on 28.09.2008 and accused entered in the said shop by breaking the door with an intention to commit theft. Further with respect to the allegations regarding the offence under Section 380 IPC, I find that the fact of theft remains unproved. PW 1 did not produce the original articles regarding which the theft is alleged. She stated in her testimony that she has already disposed off the said articles after the obtaining the same on superdari. PW 5, the IO has stated that he did not take the photographs of the articles before releasing the same on superdari. Therefore, identity of articles remains unproved. Benefit of doubt shall go in favour of accused. Further, the disclosure statement of accused is hit by Section 25 of Indian Evidence Act and therefore cannot be relied upon. Moreover, no recovery was made in pursuance of disclosure statement Ex. PW4/C and state also cannot take aid of Section 27 Indian Evidence Act.
21. The concomitant of the aforesaid discussion is that the prosecution has failed to prove the ingredients of the offence punishable under section 454/380 IPC beyond reasonable doubt. In view of the aforesaid discussion and findings, accused Khursheed @ Bhondu S/o Khalil Ahmad is acquitted for the offence punishable under section 454/380 State Vs. Khursheed @ Bhondu Page 20 of 21 FIR No. : 372/2008 IPC. Further, offence under Section 411 IPC already stands compounded between the parties. Accordingly, his bail bond stands cancelled and surety stands discharged. Original documents be released to the rightful person after due acknowledgement. Copy of judgment be provided free of cost to the accused.
RUPINDER Digitally
RUPINDER
signed by
SINGH SINGH DHIMAN
Date: 2023.06.06
DHIMAN 13:19:48 +0530
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 06.06.2023 Metropolitan Magistrate-01
KKD Courts, Delhi
It is certified that this judgment contains twenty one (21) pages and each page bears my signature.
RUPINDER Digitally
RUPINDER
signed by
SINGH SINGH DHIMAN
Date: 2023.06.06
DHIMAN 13:19:54 +0530
(RUPINDER SINGH DHIMAN)
MM-01 NE/KKD Courts, Delhi
06.06.2023
State Vs. Khursheed @ Bhondu Page 21 of 21 FIR No. : 372/2008