Delhi District Court
State (Govt. Of Nct Of Delhi) vs Prakash Singh Bisht on 15 December, 2022
IN THE COURT OF ADITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 113 of 2019
CNR No. DLST01-001885-2019
STATE (GOVT. OF NCT OF DELHI)
THROUGH PUBLIC PROSECUTOR, DELHI
.........APPELLANT
VERSUS
PRAKASH SINGH BISHT
........ RESPONDENT
DATE OF INSTITUTION : 19.03.2019
JUDGMENT RESERVED ON : 12.12.2022
DATE OF JUDGMENT : 15.12.2022
JUDGMENT
1. By way of this appeal, the appellant/State has challenged the Judgment and order dated 16.02.2019 whereby the accused/ respondent was acquitted for offences U/s 454/380 IPC in case bearing FIR No.447/2013, P.S. Saket, Delhi.
2. The fact, as appearing from the record, shows that on 21.10.2015 at about 12:15 pm at H. No.1279, Sector-3, Pushp Vihar, New Delhi, the accused committed house trespass in the above house belonging to one Durga Madhav with an intention to commit theft and committed theft of one TV along with remote make BPL, set-top box, remote, cable and adapter and he was apprehended at some distance near the spot by complainant Sh. Nitin Dnyeshwar Shende along with the stolen property. After completion of investigation, the police of PS Saket presented a CA No. 113/2019 State vs. Prakash Singh Bisht Page 1 of 10 chargesheet against the accused/ respondent before the Ld. Magistrate. A charge U/s 454/380 IPC was framed against the accused/respondent on 08.02.2016 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined 06 witnesses i.e., PW1 Nitin, PW2 Ct. Sumit, PW3 Sh. Durga Madhav, PW4 ASI Gurdeep Raj, PW5 ASI Daya Nand and PW6 Inspector Rajender Singh before the Ld. Trial Court. Accused chosen not to lead any evidence in his defence. After completion of trial, the Ld. Trial Court came to the conclusion that the prosecution has failed to prove the guilt of accused beyond reasonable doubt and acquitted the accused for the offence U/s 454/380 IPC. Hence, against the acquittal order of the Ld. Trial Court, this appeal has been preferred by the State/appellant before this Court.
4. Both the sides have been heard. Record perused.
5. The case of the prosecution is that the complainant Shri Nitin was present at his quarter on 21.10.2015. At around 12:00 to 12:30 p.m., he was walking outside his quarter on the road when he saw the accused coming out from the house number 1279, First Floor, Sector-3, Pushp Vihar which is the quarter of one Durga Madhav. Complainant Sh. Nitin saw that accused was carrying a portable TV along with remote and set-top box. Being suspicious, he called him but he(accused) did not stop and started running toward Khanpur red light. He shouted chor- chor and chased him. Meanwhile his neighbour, namely, Kulwinder also CA No. 113/2019 State vs. Prakash Singh Bisht Page 2 of 10 came there and both of them chased the said person. They apprehended him with the help of public persons and on enquiry, his name was revealed as Prakash Singh Bisht. Thereafter, Kulwinder called the police at 100 number and police came at the spot. They produced the accused before the police official and also produced the TV along with remote and set-top box. On this, the FIR was registered and chargesheet was filed after investigation.
6. In the present case, the accused was caught near the house in which the alleged theft was committed and the stolen article was found to be in the possession of the accused at that time. These facts were duly supported by the testimony of the complainant. In his evidence, the complainant stated that "At around 12:00-12:30 pm, I was walking outside my quarter on the road, I saw that one person came pout from H. No.1279, 1 st Floor, Sector-03, Pushp Vihar i.e. the quarter of Sh. Durga Madhav and he was carrying a portable TV alongwith remote and set-top box". In his cross examination, nothing could be extracted which can raise any iota of doubt on his version of the complaint. In fact, the thorough cross-examination has further substantiated these facts. He is the star-witness in the case and there is nothing on record which makes his testimony unreliable. He is an independent witness. Neither the things stolen belong to him nor the theft has been committed in his house. The owner of the property is just his neighbour and he has no relation with the owner, nor he has any enmity with the accused. Being a credible witness, his sole evidence is sufficient to prove the facts stated by CA No. 113/2019 State vs. Prakash Singh Bisht Page 3 of 10 him as accused has not provided any reason as to why the witness tried to falsely implicate him in this case.
7. Ld. Counsel, however, argued that Kulvinder (who was with the complainant) has not been examined by the prosecution in this case which creates doubt. This Court is of the opinion that in view of Section 134 Evidence Act, there is no necessity of multiplicity of witnesses and if a reliable witness is there, the fact can be treated as established on the basis of his testimony. It seems that Ld. Trial Court had issued summons to said Kulvinder which remained unserved. In such circumstances, prosecution cannot be punished for non- examination of said Kulvinder. No reason has been provided to doubt the testimony of the complainant Nitin and therefore, absence of Kulvinder cannot hamper the case of the prosecution.
8. Since the testimony of complainant Nitin is reliable, it has to be accepted that he had seen the accused coming down from the stairs and apprehended the accused at some distance. This situation draws the attention of this Court to the Illustration-(a) of the Section-114 of the Indian Evidence Act which says that "The Court may presume-(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". Section-114 of the Indian Evidence Act empowers the Court to raise presumption of the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events. The Illustration-(a), as quoted above, further clarifies the provision and provides for an CA No. 113/2019 State vs. Prakash Singh Bisht Page 4 of 10 example as to how a Court can raise the presumption. If a person is found with something which is established to be stolen, then depending upon the specific circumstances, such person can be taken as either a thief or having received the stolen thing.
9. The effect of raising the presumption is that the prosecution is not required to prove the fact in respect of which the presumption has been raised. Thereafter, it becomes the duty of accused to show that the presumed fact could not have existed. Since Section-114 is a discretionary presumption, the burden to rebut the same is not heavy on the opposite side. We have to see if the accused has been able to rebut. Herein, the accused has not imputed any motive on the part of either the complainant or the police officials for his false implication. In his examination under Section-313 Cr.P.C., he only stated that he was mistaken with the original thief who left the articles there and fled away and that he went there to meet his friend Lalit. Although, it was not possible for the accused to prove the fact that the original thief left the article and fled away but he could have examined his friend Lalit to prove that his presence was there by chance and there was possibility of someone else at the scene. The accused, however, chosen not to examine the said Lalit which clearly makes his claim a bald claim and therefore cannot be relied upon.
10. It is not disputed that the place where the theft was committed is a dwelling house. Hence, the accused would be liable under Section-380 of the IPC.
CA No. 113/2019 State vs. Prakash Singh Bisht Page 5 of 1011. However, in respect of Section-380 of the IPC, the Ld Trial Court has taken the view that no one has seen the accused committing theft and none of the prosecution witnesses has seen the accused coming out from the specific flat. It seems that the Ld. Trial Court has failed to appreciate that if commission of theft is witnessed by any person, it probably will not be completed and will be aborted by the person witnessing the same in most of the cases. If the crime has not been witnessed by anyone, it does not mean that it has not been committed. The Ld. Trial Court has not doubted the statment of complainant Nitin that he had seen the accused coming down from the stairs. It is not the requirement of law that the witness should also had have seen the accused actually coming out from the flat where the theft has happened. In the absence of doubt being raised on the testimony of complainant Nitin, his claim has to be accepted that the accused was seen coming down from the stairs. It was then for the accused to show as to what he was doing in that building at that time as it would have been in his personal knowledge. Such a situation will attract Section-106 Evidence Act and the burden would be on accused to justify his presence. As discussed earlier, the accused has failed to discharge the burden since his claim about the purpose of meeting his friend Lalit is unacceptable in the absence of any evidence. In this very case, it appears from the evidence that the theft has been committed and with the help of Section-114 of the Evidence Act, it is duly proved that the accused has committed the theft.
12. Next, this Court comes to the offence under Section-454 of the IPC which provides the punishment for lurking house-
CA No. 113/2019 State vs. Prakash Singh Bisht Page 6 of 10trespass or house-breaking in order to commit offence punishable with imprisonment.
13. The Ld. Trial Court has acquitted the accused on the ground that the accused has not taken any precaution to conceal himself. It seems that the Ld. Trial Court has failed to appreciate the law that Section-454 IPC also envisages the concept of house-breaking. For the concept of house-breaking being attracted, there is no requirement of concealment. House- breaking is defined in Section-445 IPC which takes into account entry in the house after breaking the lock and if the entry is with the intention to commit an offence having punishment of imprisonment, the same becomes punishable U/s 454 IPC. In the present case, the claim of the prosecution is that lock of the house was broken to enter the house and thereafter theft was committed. There are ample evidence on record to show that the house was opened by breaking the lock of the door.
14. In this context, however, the Ld. Counsel for the accused has argued that there is discrepancy about the recovery of broken lock. He has invited my attention to the FIR and submitted that the lock was handed over by the complainant Nitin whereas as per the claim of police, the broken lock was recovered on pointing out by the accused. I have perused the FIR. It appears that the FIR is primarily based upon the written complaint given by complainant Nitin. In his complaint, the complainant has stated that he had handed over the accused, TV, Set-top box to the police. The averments of his complaint ends there. The FIR shows that after the averments in the complaint, some more CA No. 113/2019 State vs. Prakash Singh Bisht Page 7 of 10 sentences (wherein handing over of lock is written) are mentioned in the FIR with which the complaint of Nitin has no concern. The same was written by the police official and not by him. The complainant Nitin, even in his testimony before the Ld. Trial Court, has nowhere said that he had handed over the broken lock to the police official. Even no suggestion to this effect was given during his testimony by the accused side. To this extent, the FIR, the complaint and the testimony of the complainant all are in the same line and depict clear picture of the events as to how they have happened. In the Trial Court, accused side did not even suggested to the IO that lock was not recovered on pointing out by accused and rather it was handed over by the complainant. Even if the accused wanted to raise any discrepancy (even which is not the case here), the attention of witnesses should have been invited to such so-called discrepancies so that they would have a chance to explain the same. No such thing has been done by the accused. In such circumstances, the accused cannot say that there was contradiction in the testimony of the complainant Nitin or the version of prosecution.
15. It is clear that the lock was recovered on the pointing out of the accused. Section-27 of the Evidence Act contemplates a statement and such consequential recovery. When an accused points towards something, it is basically the statement by gesture. If consequence thereto, some fact is discovered, the same will become relevant U/s 27 of the Evidence Act. No doubt, the flat and the space where the lock was found were open place, the time gap between the incident of theft, apprehension of accused and recovery of lock is so short that it cannot be said that it was CA No. 113/2019 State vs. Prakash Singh Bisht Page 8 of 10 factum of broken lock was discovered prior to the pointing out of the accused. In such circumstances, this recovery of broken lock will be treated as a discovery of fact on the pointing out of accused U/s 27 Evidence Act which is a very relevant piece of evidence in this case. This fact goes against the accused. Ld. Counsel, however, argued that in the Court the lock was produced in open condition. If this was so, the defence side should have suggested to the police official that the produced lock was not the same. This has not been done by the defence side. In such circumstances, no benefit can be gained by the accused.
16. Ld. Counsel for the accused then argued that instrument of lock breaking was not found. In the opinion of this Court, it does not make any difference if the instruments was not found by which the lock was broken. It is the common course of natural events that theft in a house which is locked cannot be committed without opening the door or entering by any other way. Once it is established that the accused has committed theft, it can be safely infered that it is he only who committed theft after breaking the lock of the door unless presence of someone else is also proved. It is not always possible to find the instrument. In such circumstances, the argument of the Ld. Counsel cannot help the accused.
17. In the present case, the prosecution has been able to establish the fact that the accused was present at the spot, he was having the stolen material and he was apprehended by a person (having no enmity) at some distance from the spot. Accused has CA No. 113/2019 State vs. Prakash Singh Bisht Page 9 of 10 failed to show anything which can reasonably rebut the presumption available U/s 106 Evidence Act or distract the Court from raising presumption U/s 114 Evidence Act. The accused therefore, has to be treated as a thief having committed the theft in a dwelling house after breaking the lock with intent to commit an offence having punishment of imprisonment. This situation will attract Section-380 & 454 IPC. Since no charge was framed by the Ld. Trial Court for Section-411 IPC and since the presumption U/s 114 Evidence Act can be used either way, there is no necessity, at this stage, to invoke Section-411 IPC in this case.
18. For the reasons stated above, the judgment dated 16.02.2019 of the Ld. Trial Court is set aside and accused Prakash Singh Bisht is hereby convicted for the offences punishable under Sections 454 and 380 of the IPC.
19. Let the convict be heard on the quantum of sentence.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 15TH DAY OF DECEMBER, 2022 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 113/2019 State vs. Prakash Singh Bisht Page 10 of 10