Delhi District Court
State vs . Mohd Nurej @ Dhadhi on 26 August, 2019
IN THE COURT OF MS. TANYA BAMNIYAL METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. MOHD NUREJ @ DHADHI
EFIR No. 000451/18
U/s : 380/454 IPC
P.S. : Malviya Nagar
Date of Institution :10.09.2018
Date on which case reserved for Judgment : 23.08.2019
Date of judgment : 26.08.2019
JUDGMENT
1.FIR No. of the case : 000451/18
2.Date of the Commission : 25.03.2018
of the offence
3.Name of the accused : Md. Nurej @ Dadhi,
: S/o Sh. Md. Enamul Haq,
: R/o H.No. S 82/118,
: Jagdamba Camp,
: Sheikh Sarai PhaseI,
: New Delhi.
4.Name of the complainant : Sh. Shrey Shukla,
: S/o Sh. Anil Kumar,
: R/o H.No. J1/8, LGF,
: Khirki Extension,
: Malviya Nagar,
: New Delhi.
5.Offence complained of : U/s 380/454 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted for offence U/s 454 IPC.
FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 1/6
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 25.03.2018 at about 07:00 am - 07:30 am at H.No. J 1/8 LGF Khirki Extension, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Md. Nurej @ Dadhi committed house breaking by cutting the fence of the door of the house of the complainant Sh. Shrey Shukla and unlocking the door in order to commit theft and thus accused committed the offence punishable U/s 454/380 IPC.
2. FIR No. 451/18 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 380/454 IPC was filed before the court on 10.09.2018.
4. On the basis of prima facie material available on the record, charge for the offence punishable under section 454/380 IPC was framed against the accused Md. Nurej @ Dhadhi to which the accused pleaded not guilty and claimed trial on 08.10.2018.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined seven witnesses.
6. PW1 was the complainant Sh Shrey Shukla. He deposed about the incident. He exhibited the eFIR as Ex. PW1/A, seizure memo of mobile phone as Ex. PW1/B, mobile phone make Micromax as Ex. P1, invoices of stolen phones as Ex. PW1/Z1 and Ex. PW1/Z2 respectively and screen image of the mobile phone as Ex. PW1/C.
7. PW2 was Ct. Surender. He exhibited the arrest memo of the accused FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 2/6 as Ex. PW2/A and disclosure statement of accused as Ex. PW2/B.
8. PW3 was the MHC(M) HC Ajay Singh. He exhibited the relevant entry of the register no. 19 of the year 2018 at Sr. No. 2666 as Ex. PW3/A.
9. PW4 was the Duty Officer (DO) ASI Sudhir. He exhibited the relevant entry i.e. DD No.15A in roznamcha of the year 2018 as Ex. PW4/A.
10. PW5 was the Investigating Officer (IO) of the case namely HC Rakesh.He exhibited the site plan as Ex. PW5/A.
11. PW6 was the Nodal Officer Bharti Airtel Ltd namely Sh. AjayKumar. He exhibited the CDR of mobile no. 8521210988 issued in the name of accused Nurej as Ex. PW6/A, KYC CAF as Ex. PW6/B and certificate U/s 65B Evidence Act as Ex. PW6/C.
12. PW7 was the second IO namely HC Mukesh who gave notice U/s 91 Cr.PC to the Nodal Officer Bharti Airtel Ltd.
13. Accused admitted the factum of TIP refusal report dated 10.08.2018 U/s 294 Cr.PC and same is Ex. X1 on 16.01.2019.
14. Prosecution evidence was closed on 19.03.2019. After conclusion of prosecution evidence, the Statement of Accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 28.03.2019. Accused did not seek to lead defence evidence. An application U/s 311 CrPC for recalling the complainant Sh Shrey Shukla has been moved on behalf of the accused. Hence, PW1 was summoned and he was cross examined by the ld defence counsel.
FINAL ARGUMENTS:
15. Final arguments were thereafter advanced by Ld. APP for the State and Ld. counsel for the accused. It was argued by ld APP for the State that the prosecution, has proved the case against the accused, beyond reasonable doubts and FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 3/6 hence the accused be convicted in this case.
16. Per contra it was argued by ld counsel for the accused that the accused was arrested 4 months after the complaint of the theft. Further, the complainant has failed to identify the witness and no CCTV was seized by IO which can prove the presence of accused at the time of incident.
REASONS FOR DECISION:
17. In order to prove the allegations of offence punishable u/s 454/380/411 IPC, the prosecution need to prove the following essential ingredients: ● That the accused should have committed lurking house trespass or house breaking.
● That he did so in order to the committing of any offence punishable with imprisonment or an offence of theft.
18. It is also pertinent to note that it was held in K.E. lokesha and another Vs State of Karnataka 2012 CrLJ 2120 (Kar) that in view of the conviction for section 454 of the IPC, separate conviction for the offence U/s 380 of IPC is not needed as the offence U/s 454 IPC also includes Section 380 IPC.
19. In order to prove the guilt of the accused the prosecution has examined all the witnesses being seven in number.
20. It is alleged by the prosecution that on 25.03.2018 at about 07:00 am - 07:30 am at H.No. J 1/8 LGF Khirki Extension, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Md. Nurej @ Dadhi committed house breaking by cutting the fence of the door of the house of the complainant Sh. Shrey Shukla and unlocking the door in order to commit theft and thus accused committed the offence punishable U/s 454/380 IPC.
FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 4/6
21. In this regard the prosecution has examined star witness being the complainant namely Shrey Shukla as PW2 who identified the accused on the basis of screen image on the mobile phone of the accused and also correctly identified the mobile phone of the accused which had fallen at the place of incident while he was running i.e. Micromax Ex. P1 and hence supported the case of prosecution.
22. PW2 Ct Surender who is the arresting witness deposed that on the basis of secret information regarding the accused, he was apprehended. He further corroborated that IO arrested the accused vide arrest memo Ex. PW2/A. The witness also correctly identified the accused. HC Ajay Singh deposed that on 26.03.2018, IO HC Rakesh deposited the case property i.e. mobile make Micromax in the malkhana PS Malviya Nagar. Thereafter the concerned MHC(M) HC Sushil Kumar made the entry in register no. 19 at Sr. No. 2666. The copy of the same is Ex. PW3/A. PW4 ASI Sudhir is a duty officer who registered the present FIR on the basis of the rukka Ex. PW4/A vide DD entry 15A.
23. PW5 HC Rakesh is the IO who deposed that he prepared the site plan at the instance of the complainant as Ex. PW5/A bearing his signature at point B. He further deposed regarding the recording of the statement of the complainant and seizure of the mobile phone make Micromax which belong to the accused as the same had fell down on the ground while the accused was running. The same is Ex. PW1/B. The IO also correctly identified the accused. PW5 HC Rakesh corroborated the sequence of leading to the arrest of the accused vide arrest memo Ex. PW2/A. The witness is also cross examined at length by ld defence counsel however nothing could be elicited and shake the testimony of the witness which can raise any doubt on the version of the prosecution.
24. PW6 Ajay Kumar Nodal Officer Bharti Airtel Ltd is an independent witness who proved the fact that the mobile number as per the record of the mobile FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 5/6 phone make micromax golden coloured which was seized from the accused while he was running at the time of the incident was issued in the name of the accused Nurej. The copy of CDR Ex. PW6/A, copy of KYC, CAF Ex. PW6/B and certificate U/s 65 B evidence Act of the CDR is Ex. PW6/C. The above clearly shows that the mobile phone was pertaining to the accused. PW7 HC Mukesh is a formal witness who filed the supplementary chargesheet qua the CDR, KYC, CAF of mobile phone number of the accused.
25. Thus, it is clear from the foregoing paragraphs that the prosecution has proved the case beyond the reasonable doubt as the complainant has identified the accused as well as the mobile phone of accused which fell, while the accused was running. The CDR Ex. PW6/A, copy of KYC and CAF Ex. PW6/B alongwith certificate U/s 65B Indian Evidence Act Ex. PW6/C proves that the SIM No. 8521210988 was issued in the name of accused and found to be used in the mobile phone bearing IMEI No. 911562856225344. Hence accused Mohd Nurej convicted for offence U/s 454 IPC.
26. Put up for arguments on order on sentence on 31.08.2019 at 02:00 pm. Announced in the Court (TANYA BAMNIYAL) on 26.08.2019 MM02(SD)/26.08.2019 Certified that this judgment contains 6 pages and each page bears my signatures.
(TANYA BAMNIYAL)
MM02(SD)/26.08.2019
FIR No. 451/18 State Vs. Mohd Nurej @ Dhadhi 6/6