Delhi District Court
State vs . Shamim Alam on 30 July, 2013
FIR No. 194/09
P.S.: Gokalpuri
U/s:457/511/380 of IPC
IN THE COURT OF SH. JITENDRA SINGH : METROPOLITAN
MAGISTRATE, NORTH-EAST04, KARKARDOOMA COURTS
DELHI.
FIR No. 194/2009
PS: Gokal Puri
U/s. 457/511/380 IPC
Case ID No. 02402R0346842009
Dated: 30.07.2013
STATE VS. SHAMIM ALAM
Date of Institution : 25.11.2009
Date of Commission of offence : 17.06.2009
Name of the Complainant : Sh. Kuldeep Chand S/o
Sh. Amar Chand
Name parentage and address
of the accused : Shamim Alam S/o Sh.
Ajil Ali Khan @ Kale
Khan, R/o; H.No. A/41,
Gali No. 1, Ganga Vihar,
Delhi.
Offence Complaint of : U/s. 457/511/380 IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Judgment reserved on : 30.07.2013
Date of judgment : 30.07.2013
JUDGEMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 194/09. The case of the prosecution is that on 17.06.2009, at about 1.00 AM at C-94/A, Gali No. 4, Ganga Vihar, Page 1 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC Delhi, within the jurisdiction of PS Gokalpuri, accused attempted to commit lurking house trespass by night in order to commit theft by entering into the house of complainant Sh. Kuldeep Chand used as a dwelling house and on the said date, time and place, accused attempted to commit theft in the house of complainant. Therefore, accused committed an offence punishable under Section 457/511/380 IPC. On the complaint of the complainant the present FIR was registered.
2. On conclusion of the investigation a charge sheet was filed against the accused under Section 457/511/380 IPC. After necessary compliances a charge was framed against the accused U/s. 457/511/380 IPC on 12.05.2011 to which accused pleaded not guilty and claimed trial.
3. To bring home the guilt against the accused, the prosecution examined two witness in total. The prosecution has examined complainant Sh. Kulddp Chand as PW-1 and Sh. Hardayal Chand as PW-2. The remaining witnesses were formal in nature, therefore prosecution evidence was closed.
4. Statement of accused U/s. 313 Cr.PC. has been recorded separately, in which the accused did not lead his defence evidence. Final arguments have been heard and record has been meticulously perused.
5. During the course of arguments, Ld. Defence Counsel has submitted that the witnesses, who have been examined by the Prosecution are not sufficient to convict the accused. It is further submitted that the PW-1 Sh. Kuldeep Singh and PW-2 Sh. Hardayal Chand have turned hostile in their cross examination, therefore the accused is entitled to be acquitted in the instant case.
6. For proving the offence U/s. 457/511/380 IPC, the prosecution is required to prove the following:-
Page 2 of 6 FIR No. 194/09P.S.: Gokalpuri U/s:457/511/380 of IPC
(i) that the accused committed lurking house trespass by night, or house breaking by night.
(ii) that the same was committed to commit theft, or an offence punishable with imprisonment.
(iii) that the property in question is movable offence;
(iv) that such property was in the possession of a person;
(v) that the accused moved such property whilst in the possession of that person;
(vi) that he did so without the consent of that person;
(vii) that he did so in order to take the same out of the possession of that person;
(viii) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(ix) that property was at the time of the theft in a building, tent or vessel.
(x) that such building, tent or vessel, was then being used as a human dwelling or for the custody of property.
7. It is pertinent to mention here that the star witness of the Prosecution in the instant case are Complainant Sh. Kuldeep Chand and Sh. Hardyal Chand, who are projected as main witnesses to the alleged incident. However PW-1 and PW-2 have turned hostile in their cross examination. The relevant extract of the same are reproduced below for ready reference:-
" PW-1: In the year 2009, I was residing at the H.No. C-94/A with my family and I was doing a private job at Apsara Border. In the intervening night of 16/17.06.2009, he came back to my aforesaid house from my duty at about 12.45/01.00 AM, I found that the kunda of my main gate had been broken and somebody had tied the gate from inside by the clothe. At that time, there was nobody at my home as my children and my wife had gone to Punjab to spend the vacation. I peep into the gate and found that all the household articles were scattered in the house. I suspected that someone had entered in my house for committing theft and I pushed the gate and it was opened. I shouted and raised the alarm and my cousin brother Hardayal Chand, who was residing in the neighboured and some other neighbours also came to my house after hearing my voice. We searched the house but nobody was found but the Almirah of my house Page 3 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC was broken open and all the articles were scattered. In the meanwhile, some persons from the gali no. 5, which was behind my house came with one boy and told me that they had seen that boy jumping in the gali no. 5 from the house in the gali. Someone made the 100 number gali. The name of the apprehended person was disclosed as Shamim Alam. Police arrived at the spot and recorded his statement which is Ex. PW1/A, which bears my signature at point A. I had shown the spot to the police. The accused was taken by the police officials. At that time, I could not state the police official about the stolen articles as I had not checked my house.
Next day, I talk to my wife on telephone and she informed me that one gold chain with locket/pendent, one gold ring and some silver pajebs of children were kept in the almirah and she did not take these articles to Punjab. I again checked the broken almirah but the said jewelery articles were found to to be stolen. After that, I went to PS and informed the police official about the stolen about the stolen articles and also gave them list of stolen articles.
At this stage, Ld. APP for the state has requested to deferred the further examination as there is no list of stolen articles and no supplementary statement in this regard is found in the judicial file as well as in police file.
It is submitted by the witness that he is serious problem in his right leg and it is very difficult for him to come again and therefore his examination be completed today. I have gone through the file. There is no statement in the judicial file as well as in the police file. Therefore the request of Ld. APP is declined, however the Ld. APP will be at liberty to ask the relevant question in the examination of the IO. Thereafter the said witness was cross examined the witness. The relevant extract of the same is reproduced below for ready reference:-
"It is correct that I had not seen the accused while committing the theft in my house and jumping from my house in gali no. 5. It is correct that nothing was recovered from the possession of Page 4 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC the accused..".
"PW-2: In the year 2009, I was residing at the H.No. C-101, Gali No. 4, Ganga Vihar, Delhi with my family and I am retired from Indian Air Force. In the intervening night of 16/17.06.2009, at about 1.00 AM, my brother Kuldeep had raised an alarm and shouted that someone is inside his house. I immediately rushed towards his house and saw that the kunda of my main gate of his house had been broken and somebody had tied the gate from inside by the clothe. At that time, there was nobody at the house of my brother as his children and wife had gone to the native village in Punjab to spend their vacation. We pushed the gate and it was open. Some neighbours also came there. We searched the house but nobody was found inside but the almirah of the house of Kuldeep was found broken open and all the articles were scattered. In the meanwhile, some persons from the gali no. 5, which was behind the house of Kuldeep came with one boy and told us that they had seen that boy jumping in the gali no. 5 from the house of Kuldeep and he was apprehended as his legs were injured while jumping from the house in the gali. Someone made the 100 number call. The name of the apprehended person was disclosed as Shamim Alam. The accused was taken by the police officials. Police recorded my statement..
Thereafter the said witness was cross examined the witness. The relevant extract of the same is reproduced below for ready reference:-
"It is correct that I had not seen the accused while committing the theft in the house of Kuldeep and jumping from his house in gali no. 5. It is correct that nothing was recovered from the possession of accused..".
8. The complainant Sh. Kuldeep Chand and witness Sh. Hardayal Chand, who have been examined as PW-1 & PW-2 have turned hostile in their cross examination and has not deposed anything incriminating against the accused. The remaining witnesses were merely police witnesses, who were formal in nature.
Page 5 of 6 FIR No. 194/09P.S.: Gokalpuri U/s:457/511/380 of IPC
9. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
10. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing reasons, accused is entitled to acquittal. Accused is therefore acquitted.
Announced in the open court (JITENDRA SINGH) today itself. METROPLITAN MAGISTRATE KARKARDOOMA COURTS/DELHI Page 6 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC Page 7 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC Page 8 of 6 FIR No. 194/09 P.S.: Gokalpuri U/s:457/511/380 of IPC Page 9 of 6