Delhi District Court
State vs Murtza on 8 May, 2014
IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN MAGISTRATE-06
CENTRAL DISTRICT, TIS HAZARI COURTS
DELHI
FIR No.14/13
State V/s Murtza
U/S 380/457/511 IPC
PS Gulabi Bagh
CC No. 20/2G
U. ID No.0240IR0109622013
Date of Institution :04.03.2013
Date of commission of offence : Intervening night of 21/22.01.2013
Name of the complainant :Firoz, S/o Mohd. Hanif
Name and address of accused : Murtaza, S/o Sh. Ishrar, R/o Alam
Kabari Shop, In front of Metro Pillar No.
113, Pratap Nagar, Delhi.
Offence charged with : u/s 380/457/511 IPC
Plea of guilt : Pleaded not guilty.
Final Order : Convicted
Date on which order has been reserved : 24.04.2014
Date of pronouncement of Judgment : 08.05.2014
JUDGMENT
1 The Prosecution has filed the charge sheet against the accused Murtza, S/o Sh. Ishrar u/s 380/457/511 IPC. The case of the prosecution in brief is as FIR No.14/13 PS Gulabi Bagh State Vs Murtza 1/11 under:-
2 That in the intervening night of 21/22.01.2013 at about 00.30 hours, at 78- A, Basant Nagar, Kishan Ganj, Delhi, within the jurisdiction of PS Gulabi Bagh the accused Murtza attempted to commit theft in the tent of the complainant namely Firoz, S/o Mohd. Hanif, after entering into the tent with an intention to commit theft, but he did not succeed and was nabbed at the spot itself and therefore he committed the offences punishable u/s 380/457/511 IPC.
3 Upon completion of investigation the challan was filed in the court. The cognizance of the offence was taken and accused was summoned for trial. Copies u/s 207 Cr.P.C were supplied to the accused. The charge was framed against the accused for the offence u/s 380/457/511 IPC on 15.04.2013 to which he pleaded not guilty and claimed trial.
4 Prosecution in support of its case examined the following witnesses:-
5 PW 1 Firoz, who is the complainant in the present case has deposed that in the intervening night of 21/22.01.2013 at about 12.30 AM (in the night) he was sleeping at the second floor of his house, after hanging his pant and shirt on the hanger. All of a sudden, he felt that somebody has entered into his floor and thrust his hand into the pocket of PW1 in order to remove money. PW1 tried to caught hold the said person but he ran away and jumped from the Corridor. PW1 also jumped behind that person and caught that person, whose name later on revealed as Murtza. His neighbour Joginder Singh also came there and called the police and then, the accused was handed over to the police. Statement of PW1 which is Exh. PW1/A was recorded by the police. Police got the case registered, prepared the site plan and arrested the accused vide arrest memo Exh. PW1/B. Personal search of accused was also conducted vide memo Exh.
FIR No.14/13 PS Gulabi Bagh State Vs Murtza 2/11 PW1/C and also recorded the disclosure statement of accused vide memo Exh. PW1/D. 6 PW 2 HC Inderjeet deposed that on 22.01.2013 he was working as duty officer at P.S. Pratap Nagar and that at about 3.45 AM Const. Vimal produced before him one Tehreer, sent by HC Bijender, on the basis of which he had recorded the FIR of the present case and proved the computerized copy of FIR as Exh. PW2/A. He also made an endorsement on the rukka whic is Exh PW2/B. 7 PW 3 Const. Parmod deposed tht on 22.01.2013 he was working as DD writer at P.S. Gulabi Bagh. On that day, at about 12.55 AM (in the night) he had received an information regarding apprehension of accused at Gali, in front of Pillar No. 120, Metro Station through N-50 (wireless set). He had recorded the said information at DD No. 3PP and handed over the copy of the same to HC Bijender for necessary action and proved the copy of the DD as Exh. PW3/A. 8 PW H.C Ramesh Kumar deposed that on 22.01.2013 he was posted at P.S Gulabi Bagh and that on that day, the accused Murtza was brought to PS by the IO, HC Bijender. Dossier of the accused was prepared and thereafter, accused was produced before the DLSA. The accused was also produced before the then concerned Court and was remanded to J/C upto 04.02.2013 in Tihar Jil. IO had recorded his statement.
9 PW 4 Sh. Joginder Singh who is the neighbour of the complainant Firoz deposed that in the intervening night of 21/22.01.2013 he was sleeping in his house and that at about 12.00 midnight he heard a noise of "chor-chor pakro pakro", coming from outside of his house. He woke up and came outside and saw that his neighbour Firoz was chasing the thief. He also ran towards the accused and at the corner of the Gali, Firoz apprehended the accused and later FIR No.14/13 PS Gulabi Bagh State Vs Murtza 3/11 on he helped Firoz to keep the accused in his custody. The accused was handed over to the police personnels and thereafter, he came back to his house and went to sleep.
10 PW 5 Const. Vimal deposed that in the intervening night of 21/22.01.2013 he was on emergency duty at PP Andha Mughal and that on that day, at about 12.55 a.m on receipt of DD No. 3 PP (Exh. PW3/A) regarding the apprehension of a thief, he alongwith HC Bijender reached at H. No. 78A, Basant Nagar, where they met with one person namely Firoz, who produced the accused Murtza and also got recorded his statement. IO prepared a rukka and sent the same to PS for registration of FIR through PW5. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to the IO. The accused was arrested vide memo Exh PW1/B and his personal search was also got conducted vide memo Exh PW1/C. From the personal search of accused one mobile phone, make Nokia and Rs.250/- were recovered. IO had recorded his statement.
11 PW 7 HC Bijender Singh deposed that in the intervening night of 21/22.01.2013, he was on emergency duty and had received DD No. 3 from PP Andha Mughal regarding apprehension of an accused by a public person at H. No.78-A, Basant Nagar. He along with Ct. Vimal went to the spot, where they met with complainant Firoz and public person Joginder, who produced the accused Murtaza before them. Complainant told him that accused was caught by him while he was trying to commit theft of his belongings from his trouser in his room. He recorded the statement of the complainant Ex. PW1/A and prepared a rukka on the complaint and sent Ct. Vimal to PS for registration of FIR. He also prepared site plan at the instance of the complainant Ex. PW7/A After registration of FIR Ct. Vimal returned to the spot and handed over the original rukka and copy of FIR to him. Accused was interrogated and arrested vide FIR No.14/13 PS Gulabi Bagh State Vs Murtza 4/11 arrest memo Ex. PW1/B. The disclosure statement of the accused Exh. PW1/D was also recorded. The pointing out memo Ex. PW7/B was prepared and he recorded the statement of complainant and public witness Joginder. Accused was taken to PS and lodged in the lock up. After investigation of the case, he filed the challan against the accused in Court.
12 After conclusion of prosecution evidence, statement of the accused u/s 313 r/w Section 281 Cr.PC was recorded by the court in which he has stated that he is innocent and that he has falsely been implicated in the present case. However, he has not led any evidence in his defence .
13 I have heard the arguments raised on behalf of the parties and have gone through the record carefully. After going through the complete evidence and records of this case, I am of the view that before reaching at any conclusion, relevant Sections be reproduced herein below for ready reference:
Sec. 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.
Sec. 457 IPC 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.
FIR No.14/13 PS Gulabi Bagh State Vs Murtza 5/11 14 Reverting back to the case in hand, it is deposed by PW1, who is the
main eye-witness of the present case, that in the intervening night of 21/22 January 2013 at about 12.30 am (in the night) he was sleeping at the second floor of his house and was going to his bed, after hanging his pant and shirt on the hanger. However, all of a sudden he felt that somebody has entered into his floor who had put his hand into the pocket of PW1 in order to remove the money. He immediately got up and tried to caught hold that person, but that person ran away from there and jumped from the Corridor. PW1 also jumped behind that person and caught him, whose name later on revealed as Murtza. During this, his neighbour namely Joginder Singh also came at the spot, who called the police and thereafter, the accused was handed over to the police. His statement Exh. PW1/A was recorded by the police and a case was got registered by the police. Police has also prepared the site plan and arrested the accused vide memo Exh. PW1/B, personal search of accused was conducted vide memo Exh. PW1/C and the disclosure statement of accused was also recorded by the police vide memo Exh. PW1/D. 15 PW4 Sh. Joginder Singh, who is also an eye-witness of the present case has deposed that in the intervening night of 21/22 January, 2013 he was sleeping in his house and that at about 12.00 mid night he had heard a noise, coming from outside of his house of "Chor-Chor Pakro-Pakro", on which he came outside and saw that his neighbour Firoz was running after one thief. He also ran towards the accused and at the corner of the Gali, Firoz apprehended the accused and later on, he helped the Firoz to keep the accused in his custody. After handing over of the accused to the police, he came back to his house and went to sleep. He also identified the accused in the Court.
16 It is argued by the Ld. Defence counsel that testimony of PW1 FIR No.14/13 PS Gulabi Bagh State Vs Murtza 6/11
cannot be believed as there are certain discrepancies in the testimony of PW1.
In the statement given to the police Exh. PW1/A, it is submitted by the PW1 that when the accused tried to run away he shouted "Chor-Chor" and his neighbour Joginder Singh has come. There is a discrepancy as in the statement Exh.PW1/A as PW1 has submitted that Joginder Singh is his neighbour, but in examination-in-chief he has deposed that he is his Mama. Further, he has stated in his statement Exh. PW1/A that Joginder Singh has apprehended the accused and made a call at 100 number . In the examination-in-chief PW1 has also deposed that his neigbhour Joginder Singh had called the police. However, in the cross-examination it is deposed by PW1 that police came at the spot after half an hour, after the call of his father. Therefore, there is a discrepancy regarding the call made to the police.
17 In so far as the inconsistencies and anomalies highlighted by Ld. Counsel I would like to say that they are not major one as to dislodge otherwise reliable version of PW1 and PW4. To bolster my view, I would like to rely upon the judgment of the Hon'ble Supreme Court in the case titled as Lal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC) 416. Para 19 of the said judgment is relevant which is as follows:-
" So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants , are concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimony of the eye witness who is none else but FIR No.14/13 PS Gulabi Bagh State Vs Murtza 7/11 the widow of the one deceased . Further, relationship can not be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs Naresh & Others (2011) 4 SCC 324, the Court observe:-
" 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,namely , errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence can not be safe to rely upon. However, minor contradictions , inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
18 It has also been argued by the Ld. counsel for accused persons that no public witness has been examined or even cited by the prosecution in support of the case of the prosecution and some inconsistencies have cropped up in the examination of the complainant. It is argued by the Ld. Defence counsel that in the cross-examination PW1 has deposed that after apprehension of the accused 10-15 neighbour also gathered there. However, they have not been made the witnesses to the present case and therefore, in absence of the independent public witnesses, the testimony of PW1 and PW4 should not be believed in.
19 As regard this anxiety of Ld. counsel for accused persons, it can be said that there is no bar in relying upon the testimony of sole eye witness, if his testimony is found to be reliable and there is nothing in law to not to take into consideration the testimony of an injured person in the absence of the testimony FIR No.14/13 PS Gulabi Bagh State Vs Murtza 8/11 of any other public witness. To answer this question, I would like to rely upon the judgment of Hon'ble Delhi High Court in Jai Singh Rawat Vs. State (NCT of Delhi), ILR(2012)III, Delhi para 18 of the said judgment is as follows:-
18. "The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh Vs. Naresh and Ors. (2011 4 SCC 324 as under):
27. "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he as spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and thus lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. ( vide Jarnail Singh Vs. State of Punjab, Balraje Vs. State of Maharashtra and Adbul Sayeed Vs. State of M.P.)
20 Similarly, in another case Abdul Sayed Vs. State of Madhya Pradesh (2010)10 SCC 259, Supreme Court laid down:-
28. "The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally FIR No.14/13 PS Gulabi Bagh State Vs Murtza 9/11 considered to be very reliable, as he is a witness that come with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
29. "While deciding this issue, a similar view was taken in Jarnail Singh Vs. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused.
21 In a recent case titled as "Kalu @ Amit Vs. State of Haryana 2301(I) AD SC 641, it has been stated by the Apex Court in para 9 of its judgment that conviction can be based on the evidence of the sole eye witness if his evidence inspires confidence.
22 Keeping in view the aforesaid principle of law in mind, it can be safely concluded that the testimony of sole eye witness can be believed in if his testimony is otherwise reliable, coherent and clear. PW1 has deposed empathetically on oath that when he was sleeping at the second floor of his house and was going to his bed, after hanging his pant and shirt on the hanger. However, all of a sudden he felt that somebody has entered into his floor who had put his hand into the pocket of PW1 in order to remove the money. He immediately got up and tried to caught hold that person, but that person ran away from there and jumped from the Corridor. PW1 also jumped behind that person and caught him, whose name later on revealed as Murtza. PW4 has also corroborated the occurrence of such incident and the apprehension of the accused by him and PW1. PW4 also heard the noise in the night of "Chor Chor"
and he came outside his house and saw PW1 chasing the accused.
23 In the statement u/s 313 Cr.P.C, the accused has taken the stand FIR No.14/13 PS Gulabi Bagh State Vs Murtza 10/11 that all the PWs are interested witnesses and their testimony cannot be believed. However, no motive has been brought on record as to why the PWs would falsely implicated the accused. Absolutely nothing has been brought on record to discredit the testimony of the PWs. Therefore, reliance can be placed upon their testimonies.
24 Further, FIR has been prompting registered ruling out any chances of fabrication and embellishment.
25 Therefore, keeping in view the aforesaid discussion, I am of the opinion that the prosecution has proved its case beyond doubt and the accused is guilty for the offence u/s 457 IPC and 380/511 IPC.
Let he be heard on the point of sentence.
Announced in the open court Today on 8th May, 2014.
(Ambika Singh)
Metropolitan Magistrate-06(Central)
Tis Hazari Courts, Delhi
FIR No.14/13 PS Gulabi Bagh State Vs Murtza 11/11
IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN MAGISTRATE-06 CENTRAL DISTRICT, TIS HAZARI COURTS DELHI FIR No.14/13 State V/s Murtza U/S 380/457/511 IPC PS Gulabi Bagh ORDER ON SENTENCE Present : Ld. APP for the state (substitute).
Convict in person alongwith LAC Sh. V.K. Jain The convict has been convicted for the offence punishable u/s 380/457/511 IPC vide judgment announced on 08.05.2014. Ld. Substitute APP for the state seeks for imposition of maximum imprisonment. On the contrary the convict prays for a lenient view. It is submitted by the convict that he has two unmarried sisters and old aged father to look after. He also states that he belongs to a very poor family and all the persons in his family are dependent upon him as he is the sole bread earner of the family. Further, it is submitted that it his first offence and he is also repenting for the act done.
I have given my thoughtful consideration to the pleas put forth on both sides.
In the facts and circumstances of the case, as the convict Murtza has two unmarried sisters and old aged father, who are totally dependent upon him, and they would come on road if the convict is sent to jail, which is not warranted in the interest of society. Also, as the convict has further submitted that he would not repeat the offence therefore, I sentence the convict Murtza for the offence u/s 457 IPC for the period already undergone by him. Further he is sentenced for the offence u/s 380/511 IPC for the period already undergone by FIR No.14/13 PS Gulabi Bagh State Vs Murtza 12/11 him.
A copy of the judgment dated 08.05.2014 and order on sentence be provided dasti to the convict, free of cost.
Announced in the open court, Today on 20.05.2014 (Ambika Singh) Metropolitan Magistrate -06 (Central) Tis Hazari Courts, Delhi.
FIR No.14/13 PS Gulabi Bagh State Vs Murtza 13/11 FIR No.14/13 PS Gulabi Bagh State Vs Murtza 14/11