Delhi District Court
Zuber vs State on 6 October, 2015
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Criminal Appeal No. 52/2015
ID No.: 02406R0279892015
Zuber
S/o Mohd. Kasim
R/o Village Paharpur,
PS Amdabad, District Kathiya,
Bihar.
........Appellant
Versus
State .......Respondent
Instituted on: 02.09.15
Judgment reserved on: 10.09.2015
Judgment pronounced on: 06.10.2015
J U D G M E N T
Vide this judgment, I shall dispose off the present Criminal Appeal No.52/2015 filed by the appellant Zuber son of Mohd. Kasim, instituted on the date 02.09.2015, against the impugned judgment dated 03.08.15 and order on sentence dated 04.08.15 of the Ld. MM--02, South in FIR NO.566/15 whereby the appellant vide the impugned judgment dated 03.08.15 was convicted for attempting to commit the offences punishable U/s 457/380 read with Section 511 of the IPC, 1860 and was convicted for the offences punishable U/s 380 Crl. A. No.52/2015, Zuber Vs. State Page 1 of 17 read with Section 511 of the IPC, 1860 and vide the impugned order on sentence dated 04.08.15 was sentenced to two years of simple imprisonment U/s 380 read with Section 511 of the IPC, 1860 and to pay a fine of Rs.1000/ and in default of payment of fine, to further undergo simple imprisonment for one month and was sentenced to two years of simple imprisonment U/s 457 read with Section 511 of the IPC, 1860 and to pay a fine of Rs.1000/ and in default of payment of fine, to further undergo simple imprisonment for one month, with the directions that both the sentences shall run concurrently and the benefit of Section 428 of the Cr.PC, 1973 was also given to the convict. (The proceedings dated 04.08.2015 of the Ld. Trial Court indicate that the fine imposed has not been deposited.) Notice of the appeal was issued to the State.
The trial court record has been requisitioned, received and perused.
PROSECUTION VERSION As per the prosecution version set forth in the chargesheet on 23.03.15, SI Braham Pal Singh received the copy of the PCR report No.55A to the effect that at J4/72A, Khirki Extension, Malviya Nagar, New Delhi a thief had been caught, whereupon, SI Braham Pal Singh along with Ct. Sudershan, No.1938/SD reached the spot where he met the complainant, Tinku s/o Panna Lal, resident of H. No.2123, M block, Crl. A. No.52/2015, Zuber Vs. State Page 2 of 17 Sangam Vihar, New Delhi who handed over the accused Zuber S/o Mohd. Kasim, resident of village Pahar Pur, PS Amdabad, District Kathiya, Bihar i.e. the present appellant and also handed over an iron rod of approximately one and onefourth feet with a curved end and the said Sh. Tinku also gave his statement to that effect that he runs an electricity shop at J4/71A, Khirki Extension, Malviya Nagar, New Delhi and at about 9.00 PM, he was present at his shop and he saw that a boy was breaking open the lock of House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi opposite to his shop and thus, he, Tinku caught hold of that person along with the iron rod and on inquiry learnt his name to be Zuber S/o Mohd. Kasim and after the said accused i.e. the appellant herein was apprehended, a crowd collected and someone telephoned at No.100. As per the said statement of Sh. Tinku, he had apprehended the accused i.e. the appellant herein while attempting to break upon the lock of House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi with the aid of a rod.
It has been further stated in the chargesheet that the Investigating Officer, SI Braham Pal Singh recorded the statement of Sh. Tinku and made his endorsement thereon and sent the said statement for endorsement to the police station through Ct. Sudershan for the registration of the FIR and the Investigating Officer continued to Crl. A. No.52/2015, Zuber Vs. State Page 3 of 17 be present at the spot to conduct further investigation and prepared the site plan and recorded the statements of the witnesses U/s 161 Cr.PC and also arrested the accused and got him medically examined and after completion of the investigation filed the chargesheet U/s 457/380 read with Section 511 of the IPC, 1860.
PROSECUTION EVIDENCE In support of the prosecution version, the State has put forth in the witness box four witnesses i.e. PW.1, Sh. Tinku, the complainant, PW.2, HC Kanwar Singh, the duty officer, PS Malviya Nagar who registered the FIR No. 566/15 on receipt of the rukka brought by Ct. Sudershan and sent by SI Braham Pal Singh and testified to his having made endorsement on the rukka, Ex.PW.2/B;
PW.3, Ct. Yogesh; and PW.4, SI Braham Pal Singh, the Investigating Officer of the case.
PW.1, Tinku, the complainant through his testimony corroborated the prosecution version set forth in the chargesheet and testified to the effect that Ex.PW.1/A which forms the basis of the FIR, was the statement made by him to the police and also testified to having apprehended the accused redhanded while attempting to break open the lock of House No. J4/72A, Ist floor, Khirki Extension, Crl. A. No.52/2015, Zuber Vs. State Page 4 of 17 Malviya Nagar, New Delhi and of having handed over the iron rod to the police and also testified to public persons having gathered at the spot, to the police having reached at the spot, and to his having handed over the accused i.e. the appellant herein with the iron rod to the police and the seizure of the iron rod by the police vide memo Ex.PW.1/A and to the arrest of the accused vide arrest memo Ex.PW.1/C. PW.1, Sh. Tinku identified the iron rod, Ex.P1 which was produced as being the same which had been recovered from the accused.
On being crossexamined on behalf of the accused, PW.1 stated that he came to the know about the breaking of the lock of the shop when he heard the sound of the same and stated that he was standing outside his shop at a distance of about five feet from where he he heard the sound of breaking open of the lock and saw the accused and apprehended him. He further stated that he could see the accused on account of the light on the first floor.
PW.3, Ct. Yogesh, No.1938/SD testified to the effect that on 23.03.15 i.e. the date of the alleged occurrence, he was posted as Constable at PS Malviya Nagar and was on beat duty and conducting patrolling in Khirki Extension area, within the jurisdiction of PS Malviya Nagar and at about 9.00 PM, he received a call from the police station that public persons had apprehended one thief at J4/72A, Khirki Extension, Malviya Nagar, New Delhi and on receipt of the Crl. A. No.52/2015, Zuber Vs. State Page 5 of 17 same, Ct. Yogesh reached the spot and they, the public persons had apprehended the accused Zuber. PW.3 further testified to the effect that within 1015 minutes, the Investigating Officer, SI Braham Pal Singh arrived at the spot and he, i.e. Ct. Yogesh handed over the accused to the Investigating Officer and also handed over the iron rod to the Investigating Officer and the Investigating Officer arrested the accused i.e. the appellant herein in his presence vide arrest memo, Ex.PW.1/C and also conducted his personal search vide memo, Ex.PW. 1/D. On being crossexamined on behalf of the accused, PW.3 stated that he reached at the spot at about 9.00 PM, that Ct. Sudershan was also present with the Investigating Officer, SI Braham Pal Singh at the spot. He further stated that the Investigating Officer did not record the statement of public persons in his presence and also that no documents were prepared in his presence. He further stated that the iron rod was handed over to him by the public persons and that he was on beat patrolling. He informed about the same to the duty officer. Inter alia, this witness denied that the accused was not arrested in his presence and denied that he had deposed falsely.
PW.4, SI Braham Pal Singh, the Investigating Officer testified to the effect that on 23.03.15, he was posted as a Sub Inspector at PS Malviya Nagar and on that day at about 10.00 PM on receipt of Crl. A. No.52/2015, Zuber Vs. State Page 6 of 17 DD No.55A, he along with Ct. Sudershan reached at J4/72A, Khirki Extension, Malviya Nagar, New Delhi and on reaching there, he found Ct. Yogesh and the complainant, Sh. Tinku with Zuber i.e. the appellant herein. PW.4 testified to the effect that the complainant, Sh. Tinku handed over the accused Zuber along with the iron rod to him whereafter, he recorded the statement of the complainant, Sh. Tinku, Ex.PW.1/A, prepared the rukka and handed over the same to Ct. Sudershan for registration of the FIR. Inter alia, PW.4, SI Braham Pal Singh testified to the effect that after some time, Ct. Sundershan came to the spot with the copy of the FIR after getting the FIR registered and handed over the same to him and thereafter, he seized the iron rod vide memo Ex.PW1/B, and prepared the site plan, Ex.PW.4/A at the instance of the complainant and recorded the disclosure statement of the accused and after completion of the investigation, he prepared the chargesheet and filed the same in the court.
On being crossexamined on behalf of the accused, PW.4 stated that he had received the information on 23.03.15 at about 10.00 PM and he reached the spot after receipt of the same and remained at the spot till midnight and apart from the complainant, there were public persons willing to join the investigation in the present case. He further stated that no notice was served to the public persons and he had recorded the statement of the complainant at the spot itself. The Crl. A. No.52/2015, Zuber Vs. State Page 7 of 17 Investigating Officer denied that he never visited the spot and denied that the entire investigation was conducted by him while sitting at the police station and also denied that he falsely implicated the accused in the present case and also denied that no iron rod was recovered from the accused.
DEFENCE PLEA The accused in his statement U/s 313 of the Cr.PC admitted that he was apprehended at the spot and stated that he did not commit the offence as alleged and stated that the witnesses had falsely implicated him in the instant case as they were interested witnesses and that he was innocent. No evidence in defence was led by the accused.
Vide the impugned judgment dated 03.08.15, it was held by the Ld. trial court that the evidence on the record made it clear that the accused had been apprehended at the spot while attempting to commit house trespass by breaking open the lock of House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi and that the contradictions, if any, in the testimonies of the prosecution witnesses were due to normal errors and observations and normal errors of memory due to lapse of time.
Through the appeal, it was submitted on behalf of the appellant that there was no legal evidence in the case justifying the conviction of the appellant and though PW.1, Sh. Tinku testified to the Crl. A. No.52/2015, Zuber Vs. State Page 8 of 17 effect that 25 public persons had gathered at the spot, none of them were examined by the Investigating Officer, SI Braham Pal Singh. It was inter alia submitted on behalf of the appellant that Ct. Yogesh, PW. 3 testified to the effect that there was no members of the public examined in his presence and no documents were prepared in his presence though in his examination in chief, he stated that the necessary documents pertaining to the arrest of the accused i.e. the appellant herein had been prepared in his presence. It was, thus, submitted on behalf of the appellant that the testimony of PW.3 was variant at both the stages of his examination i.e. examinationinchief and the crossexamination and also brought forth, thus, the innocence of the appellant.
CONTENTIONS RAISED Arguments were addressed on behalf of the appellant by Ld. counsel, Sh. A Darda and on behalf of the respondent by Ld. Additional Public Prosecutor for the State, Sh. Salim Khan.
On behalf of the appellant, during the course of the arguments addressed, it was submitted that the testimonies of the prosecution witnesses, PW.3, Ct. Yogesh; PW.4, SI Braham Pal Singh, the Investigating Officer and PW.1, Sh. Tinku, the complainant were all variant in relation to the material particulars i.e. in relation to the handing over of the accused i.e. the appellant herein to the Investigating Crl. A. No.52/2015, Zuber Vs. State Page 9 of 17 Officer in as much as PW.1, Sh. Tinku stated that he had handed over the accused i.e. the appellant herein with the iron rod to the Investigating Officer, as per the testimony of PW.3, Ct. Yogesh, members of the public had handed over the iron rod to him i.e. PW.3 and he, Ct. Yogesh had handed over the accused i.e. the appellant herein with an iron rod to the Investigating Officer and the testimony of PW.4, SI Braham Pal was to the effect that the complainant had handed over the accused i.e. the appellant herein with the iron rod to him, which all brought forth the falsity of the prosecution version. It was inter alia reiterated on behalf of the appellant, as submitted in the appeal that nonjoinder of members of the public in the investigation, also cannot be ignored and was a factum which brought forth the falsity of the prosecution version.
On behalf of the State, it was contended by the Ld. Additional Public Prosecutor for the State that the testimonies of the prosecution witnesses, PW.1, Sh. Tinku, PW.3, Ct. Yogesh & PW.4, SI Braham Pal Singh establish the prosecution version in toto against the accused i.e. the appellant herein in relation to his redhanded apprehension at about 9.00 PM on 23.03.15 by PW.1, Sh. Tinku who caught hold of the accused i.e. the appellant herein when he heard the sound of the breaking open of the lock House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi which house was opposite Crl. A. No.52/2015, Zuber Vs. State Page 10 of 17 to his shop at J4/71A, Khirki Extension, Malviya Nagar, New Delhi and was at a distance of five feet and that the testimony of Sh. Tinku is also corroborated through the testimony of SI Braham Pal Singh and he, Sh. Tinku had handed over the accused i.e. the appellant herein along with the iron rod with which he attempted to break open the lock of the House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi to the police.
It was submitted, thus, on behalf of the State that the minor variations in the testimony of Pw.3, Ct. Yogesh from the testimony of PW.1, Sh. Tinku and PW.4, SI Braham Pal Singh, the Investigating Officer in relation to the aspect of the accused i.e. the appellant herein having been handed over to the Investigating Officer by the members of the public were immaterial.
It was further submitted on behalf of the State that the aspect that the accused i.e. the appellant herein categorically denied his apprehension at the spot of occurrence is itself an indicator of the veracity of the prosecution version.
ANALYSIS On a consideration of the entire available record and the rival pleas addressed on behalf of either side, the Court is of the considered view that the testimony of PW.1, Sh. Tinku and the Crl. A. No.52/2015, Zuber Vs. State Page 11 of 17 testimony PW.4, SI Braham Pal Singh, the Investigating Officer corroborate the prosecution version in toto in relation to all material particulars i.e. in relation to the redhanded apprehension of the accused i.e. the appellant herein by Sh. Tinku while attempting to break open the lock of House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi with the iron rod, Ex.P1.
The testimonies of the prosecution witnesses, PW.1, Sh. Tinku and PW.4, SI Braham Pal Singh also establish beyond a reasonable doubt that the accused i.e. the appellant herein was handed over by Sh. Tinku to the Investigating Officer along with iron rod recovered from him which he was utilizing for breaking open the lock of the House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi. Undoubtedly, no member from the public had been joined in the investigation and the Investigating Officer admitted that he did not give any notice to any public person to join the proceedings. However, there is no reason to disbelieve the testimony of PW.1, Sh. Tinku, the complainant who was the person who apprehended the accused redhanded while attempting to break open the lock of the House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi. The said members of the public apparently, even as per the prosecution version brought forth categorically to the effect through the statement of PW.1, Sh. Tinku and as also stated in the FIR are the Crl. A. No.52/2015, Zuber Vs. State Page 12 of 17 crowd of the persons collected after Sh. Tinku had apprehended the accused i.e. the appellant herein.
Thus, taking into account the factum that Ct. Yogesh had also reached the spot after the accident, there is no reason to disbelieve the testimony of PW.1, Sh. Tinku in relation to the aspect of his having caught hold and apprehended the accused i.e. the appellant herein while attempting to break open the lock of the House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi.
CONCLUSION In view thereof, it is held that the State has been able to establish the guilt of the accused i.e. the appellant herein for the proved commission of the offence of attempting to commit lurking house trespass by night in order to commit an offence punishable with imprisonment and of thus, having committed an offence punishable u/s 457 read with Section 511 of the IPC, 1860.
However, as regards the conviction of the appellant in relation to the alleged commission of the offence punishable U/s 380 read with Section 511 of the IPC, 1860, apart from the disclosure statement of the accused, Ex.PW.4/B which per se is inadmissible in evidence qua the admission of the accused i.e. the appellant herein that he went to the spot in order to attempt to commit theft, there is no other cogent evidence led by the State to bring forth the reason and intention Crl. A. No.52/2015, Zuber Vs. State Page 13 of 17 that the accused i.e. the appellant herein attempted to commit the offence of lurking house trespass by breaking open the lock of the House No. J4/72A, Ist floor, Khirki Extension, Malviya Nagar, New Delhi and thus, the accused i.e. appellant herein is hereby acquitted in relation to the alleged commission of the offence punishable U/s 380 read with Section 511 of the IPC, 1860.
Thus, the conviction of the appellant qua the alleged commission of the offence punishable u/s 380 read with Section 511 of the IPC, 1860 vide the impugned judgment dated 03.08.15 and order on sentence dated 04.08.15 are set aside.
On behalf of the appellant, it was contended that the impugned order on sentence dated 04.08.15 was unduly harsh in as much as the accused i.e. the appellant herein has been sentenced to two years of simple imprisonment for the commission of the offence punishable U/s 457 read with Section 511 of the IPC, 1860 and with a fine of Rs.1,000/ and in default of payment of fine, to further undergo simple imprisonment for one month and it was submitted that the appellant be released on probation submitting that he was a first time offender and had clean antecedents.
On behalf of the State, it was contended that the maximum punishment be imposed upon the appellant as the guilt of the accused had been proved beyond a reasonable doubt and he had been caught Crl. A. No.52/2015, Zuber Vs. State Page 14 of 17 redhanded at the spot and also had 25 previous involvements against him.
Vide the impugned order on sentence dated 04.08.15 of the Ld. Trial court observing to the effect that the convict did not deserve to be released on probation of good conduct or after admonishing, he had been caught redhanded at the spot by the complainant.
In the present appeal, vide order dated 02.09.15, the State was directed to submit a report specifying whether or not the appellant was involved in the other 25 cases, the number of the cases pending and the number of cases in which the accused i.e. the appellant herein had been discharged.
The Investigating Officer of the case, SI Braham Pal Singh submitted a report on 18.09.15, though forwarded by the SHO, PS Malviya Nagar to the effect that the accused i.e. the appellant herein had been arrested 25 cases of burglary and out of those 25 cases, he had been discharged in 23 cases due to nonrecovery of the case property and that apart from the present case in relation to the FIR No. 566/15, PS Malviya Nagar, there was another FIR No.1664/14, U/s 380/457/411/34 IPC, PS Malviya Nagar, which was pending trial.
The age of the appellant at the time of the apprehension is indicated to be 23 years. The report of the Investigating Officer is duly forwarded by the SHO, PS Malviya Nagar, as submitted on 18.09.15 Crl. A. No.52/2015, Zuber Vs. State Page 15 of 17 on the record in the present appeal, brings forth that the appellant is not a previous convict and that the present FIR NO.566/15, PS Malviya Nagar is the only case in which he has been convicted and vide the impugned judgment dated 03.08.15 of the Ld. MM02, South had been convicted for commission of the offences punishable U/s 457/380 read with Section 511 of the IPC, 1860 and vide the present judgment, the conviction of the appellant qua the alleged commission of the offence punishable u/s 380 read with Section 511 of the IPC, 1860 has been set aside and the conviction of the appellant has been sustained qua the alleged commission of the offence punishable u/s 457 read with Section 511 of the IPC, 1860.
The offence punishable u/s 457 of the IPC, 1860 is simplicitor an offence punishable with a term which may extend to five years and with a liability that may be imposed also of a fine, and in terms of Section 511 of the IPC, 1860, an offence punishable u/s 457 (PartI) read with section 511 of the IPC, 1860 would, thus, be punishable with a term which may extend to one and half of the longest term of imprisonment, provided for the offence punishable U/s 457 (PartI) of the IPC, 1860 and with a fine that may be imposed and thus, the offence punishable U/s 457 (PartI) read with section 511 of the IPC, 1860 is punishable with imprisonment for a term which may extend to two and half years.
Crl. A. No.52/2015, Zuber Vs. State Page 16 of 17
Taking the totality of the circumstances, thus, into account, that the appellant is a young man and is a first time offender and is punishable qua the offence punishable U/s 457 read with section 511 of the IPC, 1860 to a term that may extend to two and half years and with such fine that may be imposed and also taking into account the factum that the appellant has been in custody since the date of his arrest i.e. 23.03.15 till date i.e. for a period of 6 months and 13 days and also taking a reformative approach, it is considered appropriate to release the appellant on probation of good conduct in terms of Section 360 of the Cr.PC, 1973 subject to his submitting a personal bond and surety bond to the tune of Rs.50,000/ with two sureties of the like amount that he shall, for a period of three years from the date of acceptance of the probation and surety bonds, keep peace and be of good behaviour and shall commit no offence whatsoever.
The Criminal Appeal No.52/15 is accordingly partly allowed.
The matter be renotified for 12.10.15 for submission of the probation bond and the surety bonds, when the appellant be produced from JC.
Announced in open Court today (ANU MALHOTRA)
on this 6th day of District & Sessions Judge (South)
October, 2015 Saket/New Delhi.
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