Delhi District Court
State vs . Iliyas @ Kaley on 7 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Iliyas @ Kaley FIR NO. : 445/2006, U/s 380/457/34 IPC PS : SEELAMPUR A. CIS No. of the Case : 461557/2015 B. FIR No. : 445/2006 C. Date of Institution : 28.11.2007 D. Date of Commission of Offence : Intervening night of 17.07.2006 and 18.07.2006 E. Name of the complainant : Abdul Jabbar S/o Haji Mohd.
Mustafa, R/o 141, Phase-7, Shiv Vihar, Gali No.12, Nala Road, Karawal Nagar, Delhi.
F. Name of the Accused, his : Iliyas @ Kaley S/o Islam, R/o Parentage & Addresses E-16B, 245 Jhuggi, K-Block, New Seelampur, Delhi.
G. Representation on behalf of : Ms. Shivani Joshi, Ld. APP. State H. Offence complained of : U/s 380/457/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 14.02.2023 K. Date of Order : 07.03.2023 L. Final Order : Acquitted
FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.1 of 15 Brief Statement of Reasons for Decision of the Case
1. Briefly stated the case of the prosecution is that the complainant Abdul Jabbar heard noises at about 02:00 am and found three accused running from his house. The complainant apprehended accused Iliyas @ Kaley who is already known to him and other two accused absconded. Complainant stated that the accused persons stole cash of Rs.19,665/- and his mobile phone.
2. FIR was registered under section 380/34 IPC and has been investigated by the officials of Police Station Seelampur and IO/ASI Gaje Singh filed the charge sheet against the accused upon which cognizance was taken on 28.11.2007 by the learned Predecessor of this Court.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Charge was framed vide order dated 23.03.2012 for the offence punishable Under Section 380/457/34 IPC against accused by the learned Predecessor of this Court, to which the accused pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 03 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Haji Abdul Jabbar is the complainant and has deposed FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.2 of 15 that on 18.07.2006 at about 10:00 pm he alongwith his family was going to sleep after closing the door and in that intervening night at about 01:00 - 02:00 am he heard some noise. He woke up and saw that the light of house was on and one person was standing at the gate and two persons had already entered in his house. The boys who had entered were standing on bed and searching the bags which were kept on the machaan. He raised alarm and boys started running from the spot. He apprehended one boy. He has identified accused Iliyas @ Kaley as the one who he had apprehended at the time of commission of the offence. He has also deposed that associates of the accused managed to escape. On search of his house he found cash of Rs.20,000/-, mobile phone and some jewellery stolen by the accused persons. He has also stated that accused Iliyas @ Kaley was residing at his neighbourhood and when the family members of accused Iliyas @ Kaley came to know about his involvement they tried to compromise the matter by returning the stolen articles. The said witness was not cross examined by accused despite giving an opportunity. Vide order dated 08.02.2018, on an application moved by Ld. APP for State the said witness was recalled and examined on 18.04.2018. PW1 failed to identify the currency notes recovered from accused Iliyas @ Kaley.
(ii) PW2 ASI Braham Prakash has deposed that he alongwith ASI Gaje Singh was on patrolling duty on 19.07.2006 in the area of main market Seelampur. At about 10:00-11:00 pm one complainant Abdul Jaffar met ASI Gaje Singh. ASI Gaje Singh recorded his statement and prepared rukka. Thereafter, he handed the rukka to ASI Braham Prakash for registration of FIR. PW2 went to the PS got the FIR registered, came back to the spot, FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.3 of 15 handed over the original rukka and carbon copy of FIR to ASI Gaje Singh. Accused Iliyas @ Kaley was arrested on the identification of PW1 at 02:00 am vide arrest memo Ex. PW1/B. ASI Gaje Singh has also recorded his disclosure statement. At the instance of accused one 500 currency notes was recovered from his jhuggi. The witness correctly identified the accused Iliyas @ Kaley. The said witness was not cross examined by accused despite giving an opportunity. Vide order dated 29.11.2018 passed by Ld. ASJ, the witness was recalled for cross-
examination. In his cross-examination he has deposed that the delay by the complainant informing the police is for the reasons that the complainant was searching the offender himself. He denied the suggestion that investigation was not conducted in a fair and efficient manner.
(iii) PW3 ASI Gaje Singh has deposed that on 18.07.2006 he was on patrolling duty with Ct. Braham Prakash on foot and met complainant Abdul Jabbar at J-Block, Seelampur. Complainant Abdul Jabbar told him that on the intervening night of 17/18.07.2006 while he was sleeping with his family and door of the house was opened at about 02:00 am he heard a noise and woke up to see three persons present in the house. The complainant told him that accused Iliyas and Wakil and one unknown person had come to his house and on seeing him they fled away. The complainant informed him that Rs.19,665/-, one LG mobile phone were stolen. IO recorded his statement Ex. PW1/A, prepared rukka and handed over the same to Ct. Braham Prakash for registration of FIR. He arrested accused Iliyas on the identification of complainant. He also searched for co-accused Wakil but he could not be found and was declared a PO. He FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.4 of 15 prepared the chargesheet and filed before the Court. The said witness was not cross examined by accused despite giving an opportunity. Vide order dated 29.11.2018 passed by Ld. ASJ, the witness was recalled for cross-examination. During his cross- examination PW3 has deposed that he was informed by the complainant that he alongwith other family members were present at the spot. He has also deposed that he enquired about the delay in information to the police by the complainant and the complainant stated that he tried searching the accused at his own and when he failed he reached out to police. He denied the suggestion that the investigation was not conducted in fair and efficient manner.
6. PE was closed on 15.11.2012 and on 03.01.2023, statement of accused under Section 313 Cr.P.C. read with S. 281 Cr.P.C. was recorded and accused did not wish to lead DE. Matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. S. 380 IPC deals with Theft in dwelling house, etc and reads as:
"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."
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10. Therefore, S. 380 is an aggravated form of an offence of theft as defined in S. 378 IPC and at the onset offence of theft has to be proved.
11. S. 378 IPC defines theft and reads as:
"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.--A moving effected by the same act which affects the severance may be a theft. Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
12. In order to constitute the offence of theft, the following ingredients of the offence have to be fulfilled simultaneously:
(1) Dishonest intention to take property:
(2) The property must be movable:
(3) It should be taken out of possession of another person: (4) It should be taken without consent of that person: (5) There must be some removal of the properly in order to accomplish the taking of it.
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13. In the present case, complainant PW has deposed that he was residing at J-Block Seelampur and on 18.07.2006 at about 10:00 pm he alongwith his family went to sleep and at about 01:00 - 02:00 pm he heard some noise. He woke up and saw the light of the house was on and one person was standing at the gate and two persons had already entered in his house. Both the boys were standing on the bed and searching the bags of the house which were kept on the machan. He apprehended the accused at the spot. Later when he searched his house he found cash of Rs.20,000/-, mobile phone and some jewellery was stolen by the accused persons. When PW1 was recalled on an application under section 311 Cr. PC and examined on 18.04.2018 he failed to identify the Rs.500/- currency notes which was recovered from the possession of the accused.
14. PW1 / complainant is the only witness of the prosecution and no other witnesses have been examined by the police under section 161 Cr. PC or made a witness in the Court. None of the family members of the complainant has been examined. PW2 ASI Braham Prakash has stated that the complainant met him during patrolling at about 10/11:00 pm on 19.07.2006 whereas on the contrary IO/PW3 ASI Gaje Singh who was on patrolling duty with PW2 has stated that he met the complainant at about 10:00 pm on 18.07.2006. The incident has occurred on the intervening night of 17-18.07.2006. FIR has been registered on the statement of the complainant on 19.07.2006. The complainant has deposed that he tried to find the accused on his own however, he did not succeed and then approached the police hence, the delay.
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15. The prosecution has heavily relied on the sole testimony of PW1 complainant. There has been a delay in lodging the FIR, contradictions have been found in the deposition of PW2 and PW3 and PW1 complainant has failed to identify the case property in Court. Therefore, the uncorroborated testimony of the complainant PW1 cannot be sufficient enough to discharge the burden of the prosecution to proving the offence as defined in section 378 IPC.
16. The prosecution has also charged the accused with offence punishable under S. 457 IPC. It reads as follows:
"457. 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."
17. The genus can be found in S. 441 IPC which defines the term house trespass. The succeeding sections are the variations of the criminal trespass defined in s. 441 and are punished as per the requirements of the sections.
18. Section 441 IPC defines criminal trespass and is as under:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.8 of 15 person, or with intent to commit an offence, is said to commit 'criminal trespass'."
19. In Rajinder v. State of Haryana [(1995) 5 SCC 187 : 1995 SCC (Cri) 852], hon'ble Supreme Court Court observed as under: (SCC pp. 198-99, paras 21-22) "21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case."
20. Dealing with the issue of trespass, hon'ble Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCC (Cri) 315 at page 147 has observed that:
"It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say:
"We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.9 of 15 be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed."
21. In Matiullah Sheikh v. State of W.B., (1964) 6 SCR 978 :
AIR 1965 SC 132 : (1965) 1 Cri LJ 126, it has been observed that:
"5. It is worth noticing also that house trespass, apart from anything else is made punishable under Section 448 of the Indian Penal Code the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences. An examination of Sections 449, 450, 451, 454 and 457 show that the penalty prescribed has been graded according to the nature of the offence "in order to" the commission of which house trespass is committed. It is quite clear that these punishments for house trespass are prescribed quite independent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not. In our opinion, there can be no doubt that the words "in order to" have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under Section 449 of the Indian Penal Code. If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under Section 450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457 will apply the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
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22. From the above discussion, it can be stated that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
23. In Rash Behari Chatterjee v. Fagu Shaw, (1969) 2 SCC 216, it was observed that:
"The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
24. In the present case, PW1/Complainant has stated that he was residing at J-Block Seelampur, Delhi. Nothing has been brought by him to state that he was in physical possession of the house and the time when the accused trespassed. To the extent the complainant PW1 has not deposed the exact address at which FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.11 of 15 he was residing at the time of incident. No other witnesses have been examined by prosecution that complainant PW1 was residing at the given address at the time of of commission of offence. No documentary proof either in the form of electricity bill, water bill etc have been brought by the complainant or any other witness to suggest that the complainant was in possession of the house at the time of commission of the offence.
25. To prove the offence of S. 457 IPC, prosecution has relied on the deposition of only PW1. PW1 has been able to establish his possession at the house J-28/1/4, New Seelampur, Delhi. In the circumstances, prosecution has failed to establish the possession of the complainant at J-28/1/4, New Seelampur, Delhi and since the possession has not been established, trespass of the same cannot be said to be done. Accordingly, no offence under S. 457 IPC is made out.
26. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
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27. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
28. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.13 of 15 abiding conviction to a moral certainty of the truth of the charge."
29. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
30. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
31. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to proved the possession of the complainant or that the accused was the person present in his house on the day of incident who had committed FIR No.445/06 State vs. Iliyas @ Kaley PS Seelampur Page No.14 of 15 theft.
32. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Iliyas @ Kaley has committed offence under S. 380 IPC or S. 457 IPC, therefore, accused Iliyas @ Kaley is found not guilty in the present case and resultantly, they stand acquitted in the present case.
33. Accused is directed furnish personal bond in the sum of Rs.10,000/- with one surety of like amount u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2023.03.07
16:17:55 +0530
Announced in the open (VIPUL SANDWAR)
Court on 07th March, 2022 MM-02/NE/KKD COURTS
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