Delhi District Court
State vs . Sonu @ Tipu Sultan on 16 March, 2021
IN THE COURT OF MS. RAJAT GOYAL, METROPOLITAN
MAGISTRATE08, SOUTH EAST DISTRICT, SAKET COURTS,
SAKET, NEW DELHI
JUDGMENT
STATE VS. Sonu @ Tipu Sultan
FIR NO: 127/2016
P. S. Jamia Nagar
U/s 380/454 IPC
a Sl. No. of the case : 91083/2016
b Date of commission : 18.02.2016
c Date of institution of the case : 07.04.2016
d Name of the complainant : Rashid Kamar
e Name of the accused and his : Sonu @ Tipu Sultan, S/o Sh. Mohd.
Yaseen, R/o House no. T86, Nagali
parentage
Sarai, Kale Khan, New Delhi.
f Offence complained of : 380/454 IPC
g Plea of accused : Not guilty
h Orders reserved on : 04.03.2020
i Final order : Accused Sonu @ Tipu Sultan is
acquitted for the offences punishable
under sections 380/454/34 IPC and
he is convicted for the offences
punishable under sections 453 IPC
and 174 A IPC.
j Date of judgment : 16.03.2021
1. Briefly stated, case of the prosecution is that on 18.02.2016, between 10.30 am to 11 am, accused Sonu @ Tipu Sultan, along with FIR No. 127/2016 PS Jamia Nagar PAGE 1 OF PAGE 12 his associate (not arrested), in furtherance of their common intention, had broken into the house of complainant Rashid Kamar situated at F13/15, 1st Floor, Jogabai Extension, Jamia Nagar, New Delhi, with an intention to commit theft. It is further the case of prosecution that accused had stolen cash amount of Rs.5000/ from the house of complainant during the alleged incident and that he was apprehended after complainant came back to his house. Present FIR was lodged against the accused on the basis of complaint given by the complainant. After completion of investigation in the present case, charge sheet was filed against the accused for the offences punishable under sections 380/454 IPC.
2. Cognizance in the present matter was taken vide order dated 07.04.2016 and accused was summoned. On the basis of material on record, prima facie offence was made out against accused under section 380/454 IPC and charge was accordingly framed against the accused, to which he pleaded not guilty and claimed trial.
3. It must be noted here that during trial of this case, accused absented himself and NBWs were issued against him vide order dated 29.03.2017. On the basis of report on NBWs, process u/s 82 Cr.P.C. was issued against the accused vide order dated 17.10.2017 and accused was ultimately declared absconder vide order dated 03.08.2018. He was subsequently arrested vide kalandra bearing DD no. 13 B dated 15.02.2019, PS Hauz Khas and was readmitted to bail vide order dated FIR No. 127/2016 PS Jamia Nagar PAGE 2 OF PAGE 12 27.02.2019. Since accused had absconded himself during the present proceedings, additional charge u/s 174 A IPC was framed against him vide order dated 23.03.2019, to which charge accused pleaded not guilty and claimed trial.
4. In order to establish its case against the accused, prosecution has examined 8 witnesses. PW1 was the complainant Rashid Kamar, who stated that on 18.02.2016, he had left his house at around 10.30 am after locking the door and that when he returned at around 11 am, he found the said door open and that he raised an alarm and two persons jumped down from the balcony of his flat. It was further stated by PW1 one of the said persons fled away from the spot and the other person (accused herein) could not run away as he had suffered an injury to his leg and that the said person/ accused was apprehended by him. He also proved his complaint Ex.PW 1/A and stated that accused was arrested memo Ex.PW 1/B and that police also took photographs of the spot. PW1 also correctly identified the accused as well as photographs of the main door of his house. PW2 was HC Harriet Bara, who stated that present FIR was lodged by her on 18.02.2016, being duty officer and she also proved endorsement Ex.PW 2/A. PW3 was Ct. Dilip, who stated that he went to the spot along with IO/ASI Birender on 18.02.2016 on receipt of DD no. 20 A and met complainant Rashid, who had apprehended the accused. He also stated that IO prepared rukka and got the present FIR registered through him. It was further stated by PW3 that he came back to the spot after registration of FIR and that accused was arrested by the IO vide FIR No. 127/2016 PS Jamia Nagar PAGE 3 OF PAGE 12 memo Ex.PW 1/B and that latches of main door of the house of complainant were found broken upon inspection. PW3 correctly identified the accused as well as photographs of the spot/ broken latches. PW4 was IO/ASI Birender, who stated that he went to the spot on 18.02.2016 on receipt of DD no. 20 A and met complainant Rashid, who gave his complaint Ex.PW1/A. He further stated that accused had already been taken to AIIMS Trauma Centre. PW4 also proved rukka Ex.PW 4/A and stated that he got the present FIR registered through Ct. Dilip and that he prepared site plan Ex.PW4/C at the instance of complainant and that report Ex.PW 4/B was prepared by Crime Team Branch. It was further stated by PW4 that he then went to AIIMS Trauma Centre with Ct. Dilip and collected MLC of the accused from the said hospital and that he came back to the spot with the accused. PW4 also stated that he prepared pointing out memo Ex.PW 4/D at the instance of accused and recorded his disclosure statement Ex.PW1/D and arrested the accused vide memo Ex.PW 1/B. It was further stated by PW4 that he also took photographs of broken 'kundi' of main door of the house of complainant and proved the said photographs as Ex.P1 (Colly). PW5 was HC Sandeep, who stated that accused was arrested by him vide memo Ex.PW 5/A from near Badarpur Toll Plaza on 15.02.20109. PW5 also proved search memo Ex.PW 5/B and Kalandra Ex.PW 5/C, vide which accused was rearrested subsequent to his declaration as absconder in this case. PW6 was ASI Rajesh, who stated that process u/s 82 Cr.P.C. was executed by him at the address of the accused on 03.03.2018 and he also proved his report Ex.CW 1/A in this regard. PW7 was ASI Chainpal Singh, who stated that he received intimation about apprehension of the accused on 18.02.2016 and that he went to the spot, where he met complainant, who handed FIR No. 127/2016 PS Jamia Nagar PAGE 4 OF PAGE 12 over custody of accused to him and that he took the accused to AIIMS Trauma Centre for treatment as accused had suffered injuries because he had jumped from balcony of the 1st floor. PW8 was Dr. Puran, who stated that MLC Ex.PW 8/A was prepared by him on 18.02.2016 on the basis of medical examination of the accused.
5. Thereafter, statement of the accused under section 313 Cr.P.C. was recorded, wherein he stated that he has been falsely implicated in this case. Accused stated that he does not wish to lead any evidence in his defence. Hence, the matter was listed for final arguments. It must be noted here that despite being given opportunity, final arguments were not addressed on behalf of accused and opportunity of accused to address final arguments was closed vide order dated 04.03.2020. It must also be noted here that after final arguments were addressed by Ld. APP for the State on 04.03.2020, matter was fixed for pronouncement of judgment on 19.03.2020. However, judgment could not be pronounced on 19.03.2020 as none had appeared for the accused and there was suspension of physical functioning of the courts in view of COVID 19 situation.
6. It has been argued by Ld. APP for the State that case of the prosecution stands duly proved and that all the prosecution witnesses have been consistent in their testimony and that accused must, hence, be convicted. As already stated above, final arguments were not addressed on behalf of accused, despite opportunity.
FIR No. 127/2016PS Jamia Nagar PAGE 5 OF PAGE 12
7. I have heard the arguments and perused the record carefully.
8. I shall first deal with charge under section 454 IPC. Section 454 IPC deals with lurking house trespass or house breaking, with an intention to commit an offence punishable with imprisonment or with an intention to commit offence of theft. Lurking house trespass has been defined under section 443 IPC as house trespass committed with precautions to conceal such trespass from a person who has the right to eject the trespasser from the premises or house in question. In the instant case, prosecution has not even referred to any precautions taken by the accused in order to conceal his act of alleged trespass from the complainant or any other person. There is neither any mention nor any proof of any precaution having been taken by the accused in order to conceal his trespass. Now coming to house breaking, the same has been defined under section 445 IPC. A person can be said to have committed the offence of house breaking if and only if he enters into, or exits, from a house in any of the six ways mentioned in section 445 IPC. However, in the instant case, there is no mention of the way and manner in which accused had allegedly entered into the house of complainant. However, it was categorically stated by complainant during his testimony as PW1 that when he saw door of his house in open condition, he raised an alarm and that accused ran out of his house and jumped down from the balcony. Accused was duly identified by the complainant during his testimony. Accused has neither alleged nor proved any previous animosity with the complainant and there is no apparent reason to doubt the testimony of complainant. This act of accused in exiting the house of complainant by FIR No. 127/2016 PS Jamia Nagar PAGE 6 OF PAGE 12 jumping off from his balcony on first floor falls within second way/ condition mentioned in section 445 IPC as balcony situated on the first floor cannot be stated to be a passage intended for entering or exiting into a house. It must be noted here that act of accused in trying to exit the house of complainant by jumping from his balcony stands further corroborated by medical evidence on record. It was stated by complainant that after accused jumped from his balcony, he could not run on account of injury sustained in his leg. This aspect of injury stands corroborated from MLC Ex. PW8/A. The said MLC was prepared after accused was taken to AIIMS Trauma Centre by the PCR van, which had arrived at the spot in pursuance of call made by the complainant at 100 number. The same was also proved by PW7/ ASI Chain Pal Singh, who stated that he reached the spot on 18.02.2016 on receipt of one PCR call and that since accused was in an injured condition, he took the accused to AIIMS Trauma Centre. MLC Ex.PW 8/A was also proved by the concerned doctor who was examined as PW8. It was stated by PW8/ Dr. Puran that he medically examined the accused on 18.02.2016 and prepared and signed MLC Ex. PW8/A. Perusal of the said MLC proves that accused had suffered injury to his limbs. Thus, there is no doubt that accused had committed the offence of house breaking.
9. I shall now deal with second requirement of section 454 IPC.
Section 454 IPC specifically deals with offence of house breaking with an intention to commit an offence punishable with imprisonment or with an intention to commit theft. In the instant case, though testimony of complainant/ PW1 has proved that accused had broken into the house of complainant, it has not been proved that accused did so with an intention FIR No. 127/2016 PS Jamia Nagar PAGE 7 OF PAGE 12 to commit an offence punishable with imprisonment or to commit theft. It has been argued by Ld. APP for the State that since accused has offered no reasonable excuse for breaking into the house of complainant, it can reasonably be presumed that he had done so with an intention to commit an offence. However, I do not find much merit in this submission. A person may trespass or break into another's house for a multitude of reasons and with any intention. It is for the prosecution to specifically allege and prove any such reason or intention. Though intention may not be susceptible to any direct proof, yet there must be at least some circumstantial evidence to prove that intention of the accused in breaking into the house of complainant was the one as alleged. However, in the instant case, no such evidence, either direct or circumstantial, has been led by the prosecution to prove that intention of the accused in breaking into the house of complainant was to either commit theft or was to commit an offence punishable with imprisonment. In these circumstances, it cannot be said that accused had committed the offence punishable under section 454 IPC. However, since it has been proved from the evidence on record that accused had indeed broken into the house of complainant, it stands proved that accused had committed the offence of house breaking punishable under section 453 IPC. As far as issue of non framing of charge u/s 453 IPC is concerned, the same is of no help to the accused as accused was charged under section 454 IPC. Section 453 IPC is a subset of offence punishable u/s 454 IPC. Accused was well aware of case against him. Thus, no prejudice has been caused to the accused on this account.
10. Now coming to section 380 IPC, it is the case of prosecution that FIR No. 127/2016 PS Jamia Nagar PAGE 8 OF PAGE 12 accused and his associate had committed theft of cash amount of Rs. 5000/ from the house of complainant. However, there is no witness who had seen accused or his associate committing the alleged theft. It was merely stated by complainant/ PW1 that when he checked his house, he found Rs. 5000/ to be missing. However, the same cannot lead to the presumption that the said amount must have been stolen by the accused. No such amount was recovered from the possession of accused after his apprehension by the complainant, or even after his arrest by the police. Since there is neither any witness who had seen accused committing theft of Rs. 5000/, nor any recovery of the said amount from the possession of accused, it cannot be said that charge under section 380 IPC has been proved against the accused.
11. Accused has also been charged for the offence punishable under section 174 A IPC in this matter. It is a matter of record that accused absented himself during the present trial and consequently NBWs were issued against him vide order dated 29.03.2017. On the basis of report on NBWs, process under section 82 Cr.P.C. was issued against the accused vide order dated 17.10.2017 and accused was declared absconder vide order dated 03.08.2018. In order to prove execution of process under section 82 Cr.P.C., prosecution examined process server ASI Rajesh as PW6. Before adverting to his testimony, it would be apposite to refer to provisions of section 82 Cr.P.C. here. Following requirements must be fulfilled before it can be said that proceedings under section 82 Cr.P.C. have been duly executed:
• Proclamation to be published under section 82 Cr.P.C. must be a written one;FIR No. 127/2016
PS Jamia Nagar PAGE 9 OF PAGE 12 • It shall be publicly read in a conspicuous part of town or village where the accused ordinarily resides; • It must be affixed to some conspicuous part of the house or conspicuous part of town or village where such person ordinarily resides;
• A copy of the proclamation must be affixed at some conspicuous part of the court house; and, • Publication of the proclamation must be made at least 30 days before the date fixed for his appearance in the court.
12. In the instant case, it has been argued by Ld. APP for the State that all the said requirements were duly fulfilled and that the same has been proved by PW6/ ASI Rajesh during his testimony. As regards, first three requirements stated above, the same seem to have been fulfilled in this matter. It was stated by PW6 during his testimony that he went to the house of accused situated at T86, Nagali Sarai, Kale Khan, New Delhi to execute the proceedings. Accused has not disputed correctness of the said address. Further, as per PW6, he affixed copy of the proclamation at the house of the accused and also made an announcement about the proceedings by beat of drums. Thus, first three requirements have been duly fulfilled in this matter. Further, it was stated by PW6 that he had also affixed copy of the proceedings on the court notice board, which shows that fourth requirement stated above was also complied with in this matter. It was further stated by PW6 that he had gone for execution of the said proceedings on 03.03.2018. Date fixed for appearance of accused before the concerned court was 04.04.2018. Thus, as per testimony of PW6, execution of proceedings under section 82 Cr.P.C. was done more than 30 days before the date fixed for appearance of the accused before the concerned court. Thus, even the last requirement FIR No. 127/2016 PS Jamia Nagar PAGE 10 OF PAGE 12 mentioned above seems to have been fulfilled in this matter. PW6 also proved his report Ex. CW1/A in this regard. It is also very pertinent to note here that PW6 was not crossexamined by the accused, despite opportunity. Thus, testimony of PW6 has gone absolutely unrebutted. Reference must also be made to plea taken by the accused at the time of his rearrest vide kalandra bearing number DD no. 13 B dated 15.02.2019, PS Hauz Khas. It was stated by the accused that his absence during the trial was bonafide as he was in custody in another matter bearing FIR number 399/2016, PS Sunlight Colony. However, record called from the concerned authority/ jail shows that period of custody of accused in the said FIR number 399/2016 was from 01.09.2016 to 18.04.2017. The same has also been stated in bail order dated 27.02.2019. As already stated above, proceedings under section 82 Cr.P.C. were executed against the accused on 03.03.2018 and he was declared absconder vide order dated 03.08.2018. Date fixed for accused to appear in process u/s 82 Cr.P.C. was 04.04.2018. Thus, accused had more than ample time to find out about dates and status of the present case post his release from custody on 18.04.2017. Had the accused wanted, he could have appeared in this matter after his release from judicial custody in FIR number 399/2016, PS Sunlight Colony. It is not the case where accused was unaware of the pendency of present proceedings. Accused had been appearing in this matter before he was taken into custody in FIR number 399/2016. However, accused chose not to bother about the present case and even after his release in FIR number 399/2016, accused continued to absent himself from the present trial and did not appear in the court. Thus, absence of the accused during the trial cannot be said to be bonafide.
FIR No. 127/2016PS Jamia Nagar PAGE 11 OF PAGE 12
13. In view of above discussion, accused Sonu @ Tipu Sultan is hereby acquitted for the offences punishable under sections 380/454/34 IPC and he is convicted for the offences punishable under sections 453 IPC and 174 A IPC.
14. Let convict be heard separately on quantum of sentence.
Digitally signed by RAJAT RAJAT GOYAL
GOYAL Date:
2021.03.16
Announced in the open court (Rajat Goyal)
15:34:28 +0530
on 16.03.2021 Metropolitan Magistrate08,
South East, Saket, New Delhi.
FIR No. 127/2016
PS Jamia Nagar
PAGE 12 OF PAGE 12