Delhi District Court
State vs . Hariom Sharma & Anr. on 2 April, 2012
IN THE COURT OF SH. DEEPAK DABAS METROPOLITAN MAGISTRATE (NW05) ROHINI: DELHI FIR No. 530/2007 ID 02404R0606772008 U/s. 170/419/34 IPC PS Adarsh Nagar State vs. Hariom Sharma & Anr. JUDGMENT
1. Sr. No of case 272/2
2. Date of commission of offence 24.11.2007
3. Name of complainant Sh. Attar Singh
4. Name of accused (i) Hariom Sharma
s/o. Sh. Panna Lal
r/o. H No. 36
near Chowk Kherakalan, Delhi.
(ii) Balram
s/o. Sh. Balwant Singh
r/o. H No. 475 Gali Chopalwali
Shalimar Bagh Village Delhi.
5. Offence complained of u/s. 170/419/34 IPC
6. Plea of accused Pleaded not guilty
7. Final order Acquitted for offence
u/s. 419/34 IPC
Convicted for offence
u/s. 170/34 IPC
8. Date of such order 2.4.12
530/2007Adarsh Nagar page1/
BRIEF REASONS FOR SUCH DECISION:
1. The prosecution was set into motion in the present case on the basis of statement of the complainant i.e. Sh. Attar Singh recorded on 24.11.2007. In his statement the complainant had alleged that he was running a grocery shop and at about 7.30 PM two boys came to his shop who were having with them some instrument for checking the electric meter. It is further alleged by the complainant that those boys told him that they were from NDPL and had come to check the electric meter. It is further alleged by the complainant that he had two electric connection i.e. one for the shop and other for his house. It is further alleged that those persons checked both the meters and had broken the seal of the meter of the shop. It is further alleged that the accused persons asked for a sum of Rs. 200/ otherwise a complaint to this effect will be made against the complainant. It is further alleged that he asked them to show the complaint as well as their I Card but they failed to show the same. It is further alleged that on suspicion complainant apprehended both of them and called up at 100 number as a result of which police arrived at the spot and thereafter both the accused 530/2007Adarsh Nagar page2/ persons were handed over to the police. On the basis of the said statement present case was registered and investigation was carried out.
2. After completion of investigation, chargesheet was filed.
Accused persons were summoned and provision of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused persons in Hindi language and charge for offences punishable u/s. 170/419/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined three witnesses in support of its case.
5. PW1 is SI Azad Singh i.e. the duty officer; PW2 is Sh.
Attar Singh i.e. the complainant and PW3 is Ct. Tejpal. It is pertinent to mention that the IO of the present case i.e. ASI Gopiram expired before his testimony could be recorded in court.
6. Thereafter, prosecution evidence was closed on 20.1.12 and statement of accused persons was recorded on 24.1.12 wherein 530/2007Adarsh Nagar page3/ the accused persons denied the evidence that had come on record against them. However, they choose not to lead evidence in their defence.
7. I have heard Ld APP for State as well as accused persons and have also carefully gone through the file.
8. PW1 SI Azad Singh merely deposed regarding registration of the FIR in the present case and proved the FIR which is Ex. PW1/A.
9. PW2 Sh. Attar Singh i.e. the complainant deposed that on 24.11.07 at about 7.30 PM he was present in his house and some construction work was going on at the ground floor. He further stated that two persons came to his shop with electric apparatus for checking the electric meter. He further stated that those persons introduced themselves to be from NDPL. He further stated that he was having two electric meters, one for the shop and other for his house. He further stated that those persons broke the seal of the meter of the shop and claimed a sum of Rs. 200/ from him otherwise they threatened to lodge a complaint against him. He further stated that thereafter he asked them to show the complaint 530/2007Adarsh Nagar page4/ as well as the I Card but they failed to show the same. He further stated that on suspicion he called 23 nearby shopkeepers and apprehended those two persons who told their name as Hariom and Balram. PW2 correctly identified the accused persons in court. He further stated that he called up the police and his statement was recorded by the police. He further stated that he also handed over the electricity bills for the month of April '00 of both the meters to the police. He further stated that police took into possession the meter checking apparatus from the accused persons and site plan was prepared at his instance which is Ex. PW2/C. He further stated that disclosure statement of both the accused persons was recorded and thereafter accused persons were arrested and their personal search was also conducted. PW2 identified the case property i.e. meter checking instrument as well as a tester which is Ex. P1 and P2 respectively.
10. PW3 Ct. Tejpal testified that on 24.11.07 he was posted at police station Adarsh Nagar and was on emergency duty. He further stated that on that day he alongwith IO ASI Gopiram went to the spot i.e. H No. 25A, Mandirwali Gali, Azadpur Village 530/2007Adarsh Nagar page5/ where the complainant i.e. Sh. Attar Singh produced the accused persons alongwith an electric equipment and a tester. He further stated that IO recorded the statement of the complainant and prepared rukka and got the case registered through him. He further stated that thereafter IO seized the electric equipments vide memo Ex. PW2/B. He further stated that thereafter accused persons were interrogated and their disclosure statement was recorded. He further stated that thereafter accused persons were arrested and their personal search was conducted. He further stated that thereafter accused persons were taken to the police station and put in the lockup and the case property was deposited in the malkhana. PW3 also correctly identified the case property i.e. electric equipment as Ex. P1 and tester as Ex. P2.
11. Accused persons in their statement u/s. 313/281 cr.p.c.
recorded in court denied the evidence that has come on record against them. They stated that they are innocent and have been falsely implicated in the present case at the instance of the complainant. They further stated that on the date of incident both of them were drunk and had vomited as a result of which 530/2007Adarsh Nagar page6/ altercation took place between them and the complainant. However, they choose not to lead evidence in their defence.
12. In the present case, charge for offences punishable u/s.
170/419/ 34 IPC was framed against the accused persons. Section 170 IPC postulates that whoever pretends to hold any particular Office as a public servant, knowing that he does not hold such Office or falsely personates any other person holding such Office and in such assumed character does or attempts to do any act under colour of such Office, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 419 IPC provides punishment for cheating by personation. Section 416 IPC defines cheating by personation. Section 416 IPC postulates that a person is said to cheat by personation if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
13. IN order to prove the essential ingredients of the aforesaid offences, prosecution produced and examined three 530/2007Adarsh Nagar page7/ witnesses in support of its case. The testimony of PW1 is of formal nature. The testimony of PW2 and PW3 is very material one.
14. PW2 is the complainant in the present case. The prosecution was set into motion on the basis of the statement of PW2 made to the police. PW2 supported the prosecution case in his testimony recorded in court. PW2 reiterated all the facts in court. PW2 was not cross examined by or on behalf of accused persons. The testimony of PW2 had remained unchallanged and unrebutted. PW2 in his testimony recorded in court categorically deposed that the accused persons introduced themselves to be NDPL officials and asked him to allow them to check the electricity meter. The accused persons even checked the electricity meter of the complainant and also demanded a sum of Rs. 200/ from him. PW2 apprehended the accused persons at the spot itself. PW2 correctly identified the accused persons in court. PW2 also identified the case property in court. PW2 also proved various documents prepared in his presence during the investigation of the present case. The statement of complainant is Ex. PW2/A. The seizure memo of the apparatus seized from accused persons is Ex.
530/2007Adarsh Nagar page8/ PW2/B. The site plan is Ex. PW2/C. The arrest memo of accused persons are Ex. PW2/F and Ex. PW2/G and their personal search memo are Ex. PW2/H and Ex. PW2/J. The meter checking apparatus seized from accused persons is Ex. P1 and the tester is Ex. P2. The testimony of PW2 is clear, consistent and inspires confidence. There is no other reason to disbelieve the unchallanged and unrebutted testimony of PW2.
15. PW3 had accompanied the IO in the investigation of the present case. PW3 is a police official and he had also supported the prosecution case in totality. PW3 also correctly identified the accused persons as well as the case property. PW3 also proved various documents prepared during the investigation of the present case in his presence. PW3 was also not cross examined by or on behalf of accused persons and his testimony has also remained unchallenged and unrebutted. The testimony of PW3 also inspires confidence and there is no reason disbelieve the same. It is pertinent to mention that IO of the present case expired before his testimony could be recorded in court.
16. Now the question which craves for an answer is whether 530/2007Adarsh Nagar page9/ all the essential ingredients of both the offences stand proved from the testimony of the aforesaid three witnesses.
17. To bring home the guilt of accused persons for offence punishable u/s. 419 IPC, the prosecution was under an obligation to prove that the accused persons pretended to be some other person or by knowingly substituting one person for another or representing that they were any other person or they are person(s) other than they or such other person really are. When the testimony of PWs is read as a whole visavis the essential ingredients of offence punishable u/s. 419 IPC as defined u/s. 416 IPC, it is crystal clear that the essential ingredients of the said offence do not stand proved beyond reasonable doubt. The accused persons neither represented to be some other persons than they really are nor they knowingly substituted one person for the another etc. The evidence produced by the prosecution during the trial of the present case is not sufficient to convict the accused persons for offence punishable u/s. 419/34 IPC. Hence the accused persons are hereby acquitted for offence punishable u/s. 419/34 IPC.
18. As far as offence punishable u/s. 170 IPC is concerned, 530/2007Adarsh Nagar page10/ PW2 categorically deposed that the accused persons represented themselves to be the officials of NDPL i.e. public servant. Section 21 of IPC provides an exhaustive definition of public servant. The officers of NDPL are covered within the definition of public servants. The accused persons were even carrying the apparatus used by NDPL official and the same was recovered and seized from them. PW2 was not cross examined by or on behalf of accused persons in this regard. The prosecution has successfully proved that both the accused persons pretended to hold a particular as a public servant knowingly that they do not hold such Office. The accused persons even checked the meter(s) of the complainant under such assumed character. Hence, all the essential ingredients of the offence punishable u/s. 170 IPC stand proved beyond reasonable doubt. Hence both the accused persons are hereby convicted for offence punishable u/s. 170/34 IPC.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 2nd of April, 2012 MMNW05:ROHINI:DELHI.
530/2007Adarsh Nagar page11/
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (NW05) ROHINI: DELHI FIR No. 530/2007 ID 02404R0606772008 U/s. 170/34 IPC PS Adarsh Nagar ORDER ON POINT OF SENTENCE Present: Ld APP for State.
Both convicts are present in person.
I have heard Ld APP for State as well as convicts on the point of sentence and have perused the record.
It is submitted by convicts that they had already remained in judicial custody during the trial of the present case for a considerable period. It is further submitted by convicts that they belong to poor strata of the society. It is further submitted by convicts that they are the sole bread earner for their family. It is further submitted by the convicts that they are not previous convict. Convicts have prayed for a lenient view.
On the other hand Ld APP for State submitted that the 530/2007Adarsh Nagar page12/ convicts be sentenced to maximum punishment as prescribed for the offence in question.
In the present case convicts have been convicted for offence punishable u/s. 170/ 34 IPC. No previous conviction has been alleged or proved against convicts. The convicts are not involved in any such case, as stated by them. Convicts are having family to support and the convicts belongs to poor strata of society. The convicts are facing trial in the present case since the year 2007. Convict Hariom had already remained in judicial custody for a period of about 2 months and 13 days and convict Balram had remained in judicial custody for a period of about nine months during the trial of the present case.
Keeping in view the facts and circumstances and more particularly the socio economic status of the convicts and the fact that convicts have already remained in judicial custody during the trial of present case, I am of considered view that ends of justice would be met if the convict Hariom is sentenced to SI for the period already undergone by him during the trial of present case and is also sentenced to pay a fine of Rs. 500/ and in default of payment of fine 530/2007Adarsh Nagar page13/ SI for a period of one day. Whereas convict Balram is sentenced to SI for the period already undergone by him during the trial of the present case.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 2nd of April, 2012 MMNW05:ROHINI:DELHI.
530/2007Adarsh Nagar page14/
530/07 AN
2.4.12
Present: Ld APP for the State.
Both accused persons are present on bail.
The case is today fixed for orders/ judgment.
Vide my separate judgment of even date announced in open court today, both accused persons are hereby acquitted for offence punishable u/s. 419/34 IPC and they are convicted for offence punishable u/s. 170/34 IPC.
Vide my separate order on the point of sentence both convicts are sentenced.
Fine of Rs. 500/ has been deposited by convict Hariom. Receipt be issued to him.
Copy of the judgment as well as order on the point of sentence be supplied to both the convicts free of cost today itself. Bail bonds are cancelled. Sureties are discharged. Original documents if any of sureties on record be returned after cancellation of endorsement thereon. File be consigned to record room after necessary compliance.
DEEPAK DABAS
MM:NW05:DELHI:2.4.12
530/2007Adarsh Nagar page15/