Delhi District Court
State vs . Rohtash on 2 May, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 32/2018
PS Keshav Puram
State Vs. Rohtash
Date of Institution: 07.03.2018
Date of Judgment: 02.05.2019
JUDGMENT
(a) Serial Number of the case : 1096/2018
(b) Date of commission of offence : 17.01.2018
(c) Name of the complainant : Sh Ghamshyam Bhardwaj
(d) Name of Accused, his : Rohtash,
parentage & residence S/o Sh. Ram Charan
R/o Jhuggi no. B 46/112,
Balmiki Camp, Lawrence Road
Industrial Area, Keshav Puram, Delhi
(e) Offence complained of : Under Section 380/457/511 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
Brief Statement of the Reasons For The Decision
1) The accused Rohtash has been sent to face trial for the commission of offences under Section 380/457/511 of the Indian Penal Code (herein FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 1 of 10 referred to as 'IPC') upon the allegations that on 17.01.2018 at about 03:45 am at H No. G-56/1, Lawrence Road Industrial area, Hanuman Mandir, Keshav Puram Delhi he had attempted to commit house breaking by night in order to commit theft from Hanuman Mandir and while so attempting, he had broken the lock of the Mandir with the help of an iron rod.
2) After completion of investigation, chargesheet was filed in the Court against the accused Rohtash upon which cognizance of the offences was taken and copy of the chargesheet alongwith the documents was supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of submissions, charge was framed against the accused for the commission of offences under section 380/457/511 IPC to which he pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined only 03 witnesses.
5) PW-1 Sh. Ghanshyam Bhardwaj, being the complainant herein testified as to running a factory by the name of Gulmohar Footwear in the ground floor of his house. He further testified that in 2018, he was sleeping in the gallery of first floor of G-56/1, Lawrence Road Industrial Area and that at about midnight, he woke up after hearing noise from the side of the gate of the ground floor and he saw one person with a rod in his hand had broken the lock of the small temple FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 2 of 10 situated in G-56/1, Lawrence Road Industrial Area itself and the door of the said temple was open upon which he and his four brothers went down and apprehended the accused with the rod, PW1 called the police and the accused was handed over to the police officials, statement of the PW1 ie Ex PW1/A was recorded by the police officials, broken lock and the iron rod were also seized by police vide seizure memo Ex. PW- 1/B, Site plan Mark A was prepared at the instance of PW1, the accused was arrested and personally searched vide Ex. PW-1/C and PW-1/D. PW1 also correctly identified the accused in the Court, identified his signatures on the documents and also identified the case property ie iron rod and one broken lock Ex. P-1 (colly). Thereafter the witness was duly cross-examined by the Ld APP for the State as he was resiling from certain facts wherein he admitted that the incident had taken place on 17.01.2018 at about 3.45 am when the complainant had got up for answering the call of nature and had gone to the bathroom situated at the first floor to answer the call of nature and that it was at that time that he heard a noise of something breaking and upon looking down from the balcony, he noticed the accused with an iron rod. He was thereafter duly cross-examined by the Ld LAC for the accused.
6) PW2 Ct. Ashok Kumar testified as to having reached at G-56/1, Lawrence Road Industrial Area, Delhi with PW3 ASI Suresh Pal on 17.01.2018 upon receipt of DD no. 5A where they met the complainant Ghanshyam Bhardwaj who stated that he had apprehended the accused who had broken the lock of the Mandir with an iron rod. He further testified that the IO, prepared the rukka and got the FIR registered FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 3 of 10 through PW2 who returned to the spot with original rukka and copy of FIR which he handed over to IO who then arrested and personally searched the accused vide memo Ex. PW-1/C and Ex. PW-1/D, seized the broken lock and iron rod vide Ex. PW-1/B, made the pullanda of the case property sealing it with the seal of SP and deposited the same in the Malkhana, recorded the disclosure statement Ex. PW-2/A of the accused, got the medical examination of the accused conducted and the accused was sent to J/C. He also correctly identified the accused in the Court, identified his signatures on the documents and the case property was already Ex. P-1. He was duly cross-examined by the Ld LAC for the accused.
7) PW3 SI Suresh Pal (ASI Suresh Pal as he then was) testified on similar lines as PW2 Ct Ashok as to receipt of DD No. 5A ie Ex Y2 on 17.01.2018, as to having gone to the spot with Ct Ashok, as to having met the complainant there who handed over one broken lock, one iron rod and custody of the accused Rohtash. He further testified as to having recorded the statement of complainant Ghanshyam Ex PW1/A, as to having prepared the tehrir Ex PW3/A and getting FIR registered through Ct Ashok who returned with the copy of FIR and original tehrir which he gave to PW3. He further testified as to having prepared the site plan Ex PW3/B at the instance of complainant Ghanshyam, as to having seized the broken lock and Iron rod vide seizure memo Ex PW1/B, as to having interrogated and arrested the accused vide memo Ex PW1/C, as to Ct Ashok having personally searched the accused and search memo Ex PW1/D having been prepared, as to disclosure FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 4 of 10 statement of the accused Ex PW2/A and statement of witnesses having been recorded, as to the case property having been deposited in the malkhana and the accused having been produced before the Court after his medical examination. He also testified as to having prepared the challan and filed the same before the Court. He further testified that the case property had been sealed by him with the seal of SP. He also correctly identified the accused in the Court, identified his signatures on the documents and also identified the case property ie iron rod and one broken lock Ex. P-1 (colly). He was duly cross-examined by the Ld LAC for the accused.
8) During the course of trial, the accused did not dispute the factum of registration of the present FIR Ex Y1 and factum of recording of DD o 5A dated 17.01.2018 Ex Y2 upon which the prosecution dropped the relevant witness.
9) Subsequent thereto, prosecution evidence was closed and statement of accused was recorded under Section 281 read with Section 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained his innocence stating that he had been falsely implicated due to previous enmity with the complainant. He chose not to lead defence evidence.
10)Final arguments advanced by the Ld APP for the State as well as by the Ld Legal Aid Counsel on behalf of the accused have been carefully considered along with the evidence on record.
FIR No. 32/2018PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 5 of 10
11) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
12)To prove the commission of the offence under Section 457 of the Indian Penal Code which prescribes punishment inter alia for house breaking by night in order to commit offence punishable with imprisonment, it was for the prosecution to prove that the accused had entered into the property which was in possession of the complainant; that there was an intention to commit an offence on part of the accused; that such property was any building / tent/ vessel used for human dwelling or place for worship or for custody of property and entry into the house had been effected by the accused in any one of the six ways as defined under Section 454 of the Indian Penal Code inter alia by the accused accused having entered by opening any lock to commit house- trespass.
13)To prove the offence under Section 380 of the Indian Penal Code which prescribes punishment for theft in a dwelling house/ place used as a custody of property, it was essential for the prosecution to prove the factum of theft as defined under Section 378 of the Indian Penal Code.
FIR No. 32/2018PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 6 of 10 Hence it was for the prosecution to prove that there was the intention to take dishonestly; that the property was movable property; that the property was taken out from the possession of any person without his consent; that there was some moving of the said property to such taking and that the theft was committed in a dwelling house or place used for safe custody of property. To prove the offence under Section 511 of the Indian Penal Code, it was for the prosecution to also prove that the accused had attempted to commit the theft.
14)In the case at the hand, the prosecution has relied heavily upon the testimony of the complainant to prove its case. As PW1, the complainant has testified in his examination in chief that in 2018, when he was sleeping in the gallery of first floor of G-56/1, Lawrence Road Industrial Area, at about 12 midnight, he woke up after hearing a noise from the side of the gate of the ground floor it was then that he saw one person with a rod in his hand had broken the lock of the small temple situated in G-56/1, Lawrence Road Industrial Area itself and the door of the said temple was open upon. Hence as per testimony of PW1, the complainant had woken up around midnight only after hearing the noise.
15)However, the said testimony is not in conformity with the statement Ex PW1/A which the complainant relied upon during his examination in chief nor is it in conformity with the evidence of the complainant during his cross-examination by the Ld APP for the State wherein the complainant took the stand that on 17.01.2018, at about 3.45 am, when FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 7 of 10 he had gotten up to answer the call of nature and had gone to the bathroom situated at the first floor, he heard a noise of something breaking and upon looking down from the balcony, he noticed the accused with a rod in his hand.
16)Hence there have come on record two materially inconsistent versions as to under what circumstances, the complainant had woken up in night and no further evidence has been led by the prosecution to render the version more creditworthy than the other which thereby weakens the case of prosecution.
17)Further, it is noted that the site plan Ex PW3/B also does not reflect the position the gallery where the complainant was purportedly sleeping before hearing the noise nor any bathroom is reflected in the site plan to corroborate either of the versions/testimonies of the complainant nor any further evidence has been led by the prosecution to prove the sequence of events. Further, despite it being the stand of the complainant that he had apprehended the accused with his four other brothers, yet for reasons best known to the prosecution/investigating agency it neither cited nor examined any of the brothers to corroborate the testimony of the complainant thereby leading to an adverse inference that that brothers were either not present or if they were present, they would not have supported the case of the prosecution and were thus not examined and in either case the benefit of the same accrues to the accused.
FIR No. 32/2018PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 8 of 10
18)The prosecution has also been unable to prove the time of the incident as initially the complainant/PW1 testified that he had woken up at around midnight and then saw the accused. However, during his cross- examination, he took the stand that the incident took place at about 3.45 am on 17.01.2018. However, during his cross-examination, he again reaffirmed that the incident took place between 12 midnight to 1.00am. No further evidence has been led by the prosecution to prove the time of the incident as even the PCR officials have not been cited no examined in this case despite it coming on record that as per DD No 5A ie Ex Y2, the call was received around 4.15 am from Ct Krishan Kumar PCR nor any explanation has been furnished for such omission which renders the case of the prosecution weak.
Decision
19) In a criminal trial, the burden of proof is always on the prosecution to prove its case by creditworthy evidence which inspires the confidence of the Court and not on the basis of conjectures and surmises. However, in this case, the prosecution has failed to discharge the onus and failed to prove its case against the accused beyond reasonable doubts and thus the accused Rohtash S/o Sh. Ram Charan, is given the benefit of the doubt and is hereby acquitted of the offence under Section 457/380/511 IPC in FIR no. 32/2018, PS Keshav Puram.
20)He is directed to furnish bail bonds in the sum of Rs.10,000/- under section 437A of the Code of Criminal Procedure and is directed to be FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 9 of 10 present before the Ld. Appellate Court as and when notice is served upon him.
21) File be consigned to Record Room after due compliance.
Announced in the Open Court Digitally signed
by POOJA
POOJA
on 02.05.2019 AGGARWAL
AGGARWAL
Date: 2019.05.02
17:15:40 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 09 pages and each page bears my signature. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2019.05.02 17:15:48 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 32/2018 PS Keshav Puram U/s 380/457/511 IPC State Vs Rohtash Page No. 10 of 10