Delhi District Court
State vs . Rani on 12 September, 2018
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST
TIS HAZARI COURTS : DELHI
FIR No. 389/2008
ID 72411/2016
U/S. 454/380 IPC
PS Patel Nagar
State Vs. Rani
JUDGMENT
1. Sr. No of case 72411/2016
2. Date of commission of offence 23.5.2008
3. Name of complainant Sh. Prithvi Raj Bhasin
4. Name of accused Rani
w/o. Sh. Madan Lal
r/o. H NO. 3013/9A Gali NO 18
Ranjit Nagar, Delhi.
5. Offence complained of U/s. 454/380 IPC
6. Plea of accused Pleaded not guilty
7. Final order 12.9.2018
8. Date of such order Acquitted
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION: Accused was sent to face trial on the allegations that 23.5.2018 at about 3.00 PM at H NO. 3130/9A Gali NO 18, Ranjit Nagar, Delhi she break the lock of the said house belonging to Sh Prithvi Raj Bhasin and committed house treaspass and thereafter committed State Vs. Rani; FIR No. 389/08PN 1/10 theft of certain articles such as one almirah; one trunk; one bed; old cloths; utensils cash Rs. 1885/; Silver kamarband and Silver payal.
2. MISCELLANEOUS PROCEEDINGS: After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3. CHARGE FRAMED AGAINST THE ACCUSED: Charge for offences punishable u/s. 454/380 IPC was framed against the accused, to which she pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined following eight witnesses as under :
(a)PW1 is Sh. Prithvi Raj Bhasin. PW1 was the complainant. PW1 deposed that he had purchased the H NO. 3013/9, gali nO 18 from Smt. Shanti Devi and Madan Lal. PW1 further stated that he had kept a chowkidar namely Hariram there. PW1 further stated that accused was also residing there in one of the room as tenant. PW1 further stated that after sometime he came to know that somebody had replaced the goods of Hariram from the said room where he State Vs. Rani; FIR No. 389/08PN 2/10 was residing while Hariram was out of station. PW1 further stated that in the year 2008 when he visited the said house he saw that the lock of the door was broken and another lock with chain was fastened over it and he informed the police. PW1 further stated that the articles belonging to some lady who was residing nearby was found in said room. PW1 failed to identify the said lady due to lapse of 45 years. PW1 was cross examined by Ld APP for State in length.
(b)PW2 is HC Pratap Singh. PW2 was the duty officer. PW2 proved the registration of the FIR Ex. PW2/A.
(c)PW3 is Ct. Rajbir. PW3 had taken the copy of FIR from the police station to the IO at the spot.
(d)PW4 is Sh. Naresh Kumar. PW4 deposed that in the month of January 2008 complainant had told him that he had purchsed the house in question and had taken him there.
(e)PW5 is W/Ct. Neelam. PW5 deposed that on 15.12.2008 she had joined the investigation with the IO and had conducted personal search of accused vide memo Ex. PW5/B.
(f) PW6 is W/Ct. Babita. PW6 deposed that on 15.12.2008 she was on duty at Control Room Daryaganj from 8.00 PM to 8.00 AM and on that day, on receipt of call she reached at police station Patel Nagar State Vs. Rani; FIR No. 389/08PN 3/10 where the custody of accused was handed over to her and accused remained under her custody that night and thereafter the custody of accused was handed over to HC Kamlesh.
(g)PW7 is Smt. Pramila Devi. PW7 was also one of the tenant in house in question which was owned by Sh. Madan Lal i.e. husband of accused. PW7 further stated that said house was sold to complainant and the complainant had put lock on one room and the kitchen. PW7 further stated that after somedays some labours started residing in said house and when they were out for work, accused alongwith her son and daughter had broken open the door and removed the articles from there. She further stated that some of the articles were sold to junk dealer; some were kept by themselves.
(h)PW8 is SI Ranbir Singh. PW8 is the investigating officer. PW8 deposed that on 16.6.2008, the complaint dated 9.6.08 of the complainant was marked to him. PW8 further stated that on the basis of complaint, FIR was got registered by him and thereafter he alongwith complainant went to the spot and prepared site plan and collected the ownership documents from the complainant. PW8 further stated that thereafter he was transferred.
5. STATEMENT OF ACCUSED: Statement of accused was recorded u/s. 313 Cr.P.C. wherein the incriminating evidence was put to the accused. In the said statement State Vs. Rani; FIR No. 389/08PN 4/10 u/s. 313 Cr.P.C, accused has stated that she was falsely implicated in this case. Accused had not led any evidence in her defence.
6. ARGUMENTS OF LD. APP FOR STATE AND LD.
DEFENCE COUNSEL: Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of house breaking and commission of theft by accused has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, Ld counsel for accused has submitted that there are contradictions in the testimony of witnesses. It is also submitted that no recovery was effected from accused. It is further submitted that no public/ independent witness was joined. It is further submitted that the accused was having matrimonial dispute with her husband(Madan Lal) and therefore, she was falsely implicated in this case. It is further submitted that prosecution has miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7. REASONS FOR THE DECISION:
(i) In the present case, charge for offences punishable u/s.
State Vs. Rani; FIR No. 389/08PN 5/10 454/380 IPC was framed against accused persons. Section 454 IPC defined lurking house trespass or house braking in order to commit offence punishable with imprisonment. Section 380 IPC defines theft in any building used for the purpose of custody of property..
(ii) Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
(iii) It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
(iv) In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the respective fate of the accused.
State Vs. Rani; FIR No. 389/08PN 6/10
(v) Prosecution in support of its case has examined as
many as eight witnesses. Out of the said eight witnesses,
prosecution has examined three public witnesses firstly the complainant(PW1) secondly his friend(PW4) and thirdly the tenant(PW7) in house in question.
(vi) A bare perusal of the testimony of PW1 shows that he had turned hostile and had even not identified the accused. Despite being cross examined, he failed to identify the accused as the culprit. The relevant extract of the examination in chief is reproduced below for ready reference: "PW1: I had brought a house........from Shanti Devi and Madan Lal. I had kept one Chowkidar Hariram there. Accused Rani was a tenant in one of the rooms in said premises...........one day when I had visited the said room in year 2008 I found the locks of the said room broken and another lock alongwith chain was fastened over it........police came and broke open the lock and ......police found articles belonging to one lady who was residing nearby was found lying in said room. I cannot identify the said lady as around 45 years have lapsed since then."
(vii) The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below State Vs. Rani; FIR No. 389/08PN 7/10 for ready reference: "....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
(viii) Now coming to the testimony of PW4. PW4 had merely deposed that he was shown the room purchased by complainant while he was passing from the way. During examination in chief, PW4 had identified the accused correctly. However, during cross examination, PW4 stated that he had seen the accused for the first time in the court. Thus, the statement of PW4 cannot be believed.
(ix) The testimony of PW7 who was also residing there tenant revealed that there exists some inconsistency and does not inspire confidence, though she had stated some aspect of the incident in question. The relevant extract of the examination in State Vs. Rani; FIR No. 389/08PN 8/10 chief is reproduced below for ready reference: "PW7: I was tenant in the house of Madan Lal who is husband of Rani. There was one room behind my room in which Madan Lal used to reside with his mother. Madan Lal sold the complete building to....Prithvi Raj Bhasin. After this Prithvi Raj Bhasin placed a lock on the room which was behind my room and also on the kitchen. After 45 days some labours came there and started residing in the said room. When the labours went outside for work Rani alongwith her son and daughter broke the lock of the said room and took out all the articles from said room.....Certain articles like iron almirah and box were sold to junk dealer and some articles like Silver were taken by them. After the articles were removed the said labours came to the house and called 100 number."
"During cross examination, PW7 stated that she do not remember the date time and year of incident. Accused Rani used to reside on first floor. It is correct that the property belongs to Madan Lal..... when the lock was broken I was present on the ground floor ...........I had requested Rani not to break the lock......... On the date of incident scuffle took place between Rani and Hariram.
(x) PW7 had failed to report that matter as soon as she had seen the commission of crime either to the police or to the complainant. PW7 also was not able to tell the date time and year of the incident. PW7 had stated that accused was residing in one of the room but nowhere stated that she was residing with her son and daughter. However during cross examination she stated that accused with the help of her son and daughter had committed the offence. Thus, the same casts a doubt upon the testimony of PW7.
State Vs. Rani; FIR No. 389/08PN 9/10
(xi) As far as other witnesses are concerned, they are police
officials and they had arrived at the spot after the commission of crime. They had not witnessed the commission of crime. They had proved the documents prepared during the investigation prepared during the investigation.
(xii) In case law reported as Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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".
8. CONCLUSION: In nutshell, I am of the considered opinion that the prosecution had miserably failed to prove its case against the accused. Accordingly, accused is acquitted for offences punishable u/s. Digitally signed by JITENDRA JITENDRA SINGH SINGH Date: 2018.09.17 12:56:20 +0530 Judgment dictated and JITENDRA SINGH pronounced in the open Court ACMM:WEST DISTT:DELHI i.e. the 12th of September, 2018 (This judgment consists of 10 pages) State Vs. Rani; FIR No. 389/08PN 10/10