Delhi District Court
State vs Mahesh Kumar & Ors. on 21 March, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Mahesh Kumar & Ors.
FIR No. 242/10
PS: North Rohini
JUDGMENT
A) The date of commission : 19.09.2010
of offence.
B) Name of the complainant : Sh. Ravinder Nagpal
S/o. Sh. Khan Chand Nagpal
C) Name of the accused : 1. Mahesh Kumar
S/o. Sh. Radha Charan
2. Ajay
S/o. Sh. Mohan Mehto
3. Sonu @ Sanjay
S/o. Sh. Ganga Ram
4. Rahul
S/o. Sh. Shyam Prakash
5. Rakesh Kumar
S/o. Sh. Ram Naval
6.Mohd. Yunus @ Inuesh @ Sandeep
S/o. Sh. Mohd. Vakeel
D) Offence complained of : U/s. 457/380/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Accused Rakesh Kumar has been
convicted for the offence punishable
State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 1/23
under Section 457/380/34 IPC.
Remaining accused persons have
already been convicted on their plea
of guilt vide order dated 06.09.2012
G) The date of such order : 21/03/2013
Date of Institution : 16/11/2010
Judgment reserved on : Not reserved.
Judgment announced on : 21/03/2013
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 19/09/2010 at about 01:15 am at Flat No. B - 5/272, Top Floor, Sector - 8, Rohini, within the jurisdiction of PS North Rohini, Delhi, all the accused in furtherance of their common intention committed house tress pass by night with intention to commit theft in the house of Smt. Prakash Kokar and had in furtherance of their common intention stolen clothes, jewellry and watch as mentioned in seizure memo Mark - A and thus they committed an offence punishable under Sections 457/380/34 IPC.
2. After completion of investigation challan was filed by the police U/s 457/380/34 IPC of which cognizance was taken by Ld. Predecessor of this court.
Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 2/233. Vide order dated 30/11/2010 charge was framed against all the accused persons for trial of offence punishable under Sections 457/380/34 IPC by Ld. Predecessor to which accused persons pleaded not guilty and claimed trial. Additional charge was framed against the accused Mahesh Kumar for trial of offence punishable under Section 25 of the Arms Act, 1959 to which he pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
4. During the course of trial accused Mahesh Kumar, Ajay, Sonu @ Sanjay, Rahul and Mohd. Yunus @ Inuesh @ Sandeep pleaded guilty and vide order dated 06.09.2012 they were sentenced to Simple Imprisonment for the period already undergone by them in J/C. Further Mahesh Kumar was sentenced to deposit a fine of Rs. 700/- for the offence punishable u/s 457 IPC and a fine of Rs. 300/- for the offence punishable u/s 380 IPC and a fine of Rs. 200/- for the offence punishable u/s 25 Arms Act and in default of payment of fine for each said offence he was to undergo further simple imprisonment for one month each. Further remaining four convicts namely Ajay, Sonu @ Sanjay, Rahul and Mohd. Yunus @ Inuesh @ Sandeep were sentenced to deposit a fine of Rs. 800/- each for the offence punishable u/s 457 IPC and a fine of Rs. 400/- each for the offence punishable u/s 380 IPC and in default of payment of fine for each offence charged they were to undergo further simple imprisonment for one month each.
5. In order to prove their case the prosecution has examined 10 witnesses, testimonies of whom are discussed below:-
PW-1 Ravinder Nagpal deposed that in the intervening night of 18/19th September, 2010 he heard a bell being operated from the flat of his mother-in-State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 3/23
law, Smt. Prakash Gakhar who lives in a flat just opposite to his. He further deposed that at that time his mother in law was at Gurgaon and when he heard the bell, which was installed for the convenience of his mother-in-law, at about 01:15 am he became suspicious and also observed that the lights of her flat were on. He deposed that when he went nearing the approaching stair case near her flat, he heard some noise and also found the door of the stair case opened. He immediately closed the approach door to the stair case, whose door is self locking and gets locked on shutting it. He further deposed that thereafter he called his neighbours and security guard and informed them about the situation. He deposed that Sh. Sachin Goyal who is neighbour of his mother in law met him on the ground floor and he called the police from his mobile phone. He deposed that police opened the door with the help of the keys provided by Sachin Goyal and on being checked, five/six persons were found there who by that time gone upstairs, i.e. at the terrace of the flat. He further stated that when the police apprehended all the trespassers then they went upstairs and found that there were total 6 persons and that they were in the custody of the police. He further deposed that one chopper, one rod, one screw driver and some articles which were stolen from the house of his mother in law were recovered from those trespassers. He correctly identified all the trespassers in the court. He further deposed that the chopper was recovered from the possession of Rahul and that he cannot tell exactly as to what was recovered from whom. He proved his statement recorded by the police as Ex. PW-1/A. He deposed that the articles which were stolen from the flat of his mother in law included some golden ornaments, writst watch, chain, bangle, lock, one silver coin. He deposed that all the recovered articles were kept by the police in a pullanda and was sealed and proved its seizure memo as Ex. PW-1/B. He proved the seizure memo vide which iron rod, screw driver, broken locks, chopper were seized by the police as Ex. PW-1/C, PW-1/D, PW-1/E & PW-1/F respectively. He proved the sketch memo of chopper as Ex. PW-1/G. He State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 4/23 further proved the arrest memo vide which accused were arrested as Ex. PW1/H1 to H6. He proved the personal search memo of the accused as Ex. PW- I/I-1 to I-6. He deposed that he had informed about the incident to his mother in law over telephone. He correctly identified the case property i.e. Chopper Ex. P-1, screw driver Ex. P-2, iron rod Ex. P-3, broken locks Ex. P-4 and remaining articles (gold karas, one wrist watch, one pair of ear rings, one chain, one chain with pendent, on another chain, on mangalsutra, on chain, one piece of ear tops, one finger ring, one silver coin and one pair of pajeb) Ex. P 5 in the court.
This witness was cross examined by Ld. Defence Counsel wherein he deposed that at the time of incident, he was alone at his home. He deposed that the flat of his mother in law was situated in a three storey building and that she owns only the flat and not the building. He deposed that there is no door on the stair case at the ground floor. He deposed that the police officials had warned the accused persons to surrender from the terrace. He deposed that police remained at the spot for about half an hour and that he cannot tell exact time of their arrival but it was about 01:30 am. He deposed that his statement was recorded at PS at about 03:30 am. He further deposed that since the key of the stair case door was readily available with Sachin, thefore, no attempt was made to get the lock opened from any of the four flats from inside. He deposed that he was not sure whether the chopper was recovered from Rahul and voluntarily stated that since it was dark and recoveries were effected simultaneously, therefore, he could not identify individually the person from whom what article was recovered. He deposed that at the time of recovery at the terrace 2-3 neighbours were also present but he cannot tell their names. He denied the suggestion that the accused persons had not trespassed into the flat of his mother in law or that they were apprehended in the morning near the jhuggies.
PW-2 Smt. Prakash Gakhar deposed that her son in law Sh. Ravinder State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 5/23 Nagpal resides in a flat situated in the same building opposite to his flat. She deposed that she had received a phone call at about 2/2:15 am on the date of incident and that her son-in-law told that theft had taken place in her flat. She immediately left for Delhi from Gurgaon and arrived at abound 3/3:30 am. When she arrived her neighbours had gathered near her flat. She deposed that she checked her flat and found that some golden ornaments, silver pajeb, silver coin were found stolen. She further deposed that the articles were recovered and seized by the police. This witness has correctly identified the case property Ex. P-5. This witness was cross examined by Ld. Defence Counsel wherein he deposed that she cannot produce any receipts and bills or articles Ex. P5.
PW-3 SI Dharampal has proved the FIR as Ex. PW-3/A and his endorsement on rukka as Ex. PW-3/B. PW-4 Ct. Devender deposed that on 19.09.2010 at about 1.15 AM when he was at PS North Rohini a call regarding theft was received vide DD No. 6A. He deposed that he alongwith SI Shamim Khan, Ct. Shobir, Ct. Rajnish reached at B-5/272 Rohini, where they met Sh. Ravinder Nagpal who stated that some thieves have entered into the house of his mother in law on the top floor of the building. He deposed that he along with other police officials present there had apprehended all the six accused persons from the said building while they were trying to flee away from the terrace. He correctly identified all the accused persons in the Court. He deposed that after apprehending, the accused persons were searched and accused Mahesh was having in his possession one Chopar. On measuring the length of the chopar was found 38-1/2 long. He further deposed that accused Rahul was having in his hand one iron rod which was sharped from one side. Accused Sonu was having in his possession one screw driver. Mahesh was having in his possession one plastic pouch containing one State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 6/23 golden chain, one silver chain, one chain having gungroo on it, one golden kara, one golden finger ring, ear tops, one silver coin, one watch Raido having golden chain in it. He further deposed that all the stolen articles recovered from the accused persons were seized by the IO after converting them into sealed pullanda and sealing the same with the seal of 'SK' and were seized vide memo Ex.PW-1/B. The iron rod was seized vide memo Ex.PW-1/C. The lock of the flat which was in broken condition was also seized vide memo Ex.PW-1/E, screw driver which was recovered from accused Sanjay @ Sonu was seized vide memo Ex.PW-1/D. The sketch of the chopar was prepared which is already Ex.PW-1/G and it was also sealed in a cloth pullanda with the seal of 'SK' and was seized vide memo Ex.PW-1/F. He further deposed that SI Shamim Khan had prepared a tehrir which he had taken to PS and got FIR number 242/2010 registered. He deposed that all the accused persons were arrested in his presence and their personal search was also conducted. He correctly identified the case property i.e. Chopper Ex. P-1, screw driver Ex. P-2, iron rod Ex. P-3, broken locks Ex. P-4 and remaining articles (gold karas, one wrist watch, one pair of ear rings, one chain, one chain with pendent, on another chain, on mangalsutra, on chain, one piece of ear tops, one finger ring, one silver coin and one pair of pajeb) Ex. P 5 in the court.
This witness was cross examined by Ld. Defence Counsel wherein he deposed that all the accused persons were apprehended from the roof of the house at 4th Floor belonging to the mother-in-law of Ravinder Nagpal. He denied the suggestion that complainant is a planted witness or that accused persons have been falsely implicated in this case.
PW-5 Sh. Sachin Goel deposed that it was on 19th September, 2010, in the night at about 12.45 AM he was returning from cinema hall along with his family. He deposed that the movement he entered the premises of his society flats he State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 7/23 noticed Mr. Ravinder Nagpal rushing towards the main gate of the society. He deposed that he went ahead to go up stairs while ignoring Mr. Nagpal and went towards the parking to park his car. While he was going to lock his car Mr. Nagpal came to him and stated that some people have entered in the Flat No. 272 i.e the flat of Mrs. Gakhar. He further deposed that he immediately called police control room while using his mobile phone no. 9818200724. After ten minutes police reached at the spot. He deposed that from the ground itself he could notice that some people were going towards the terrace of the building and that since it was dark he could not see the faces of those persons properly. He deposed that later on he came to know that police had apprehended 5-6 persons who had entered into the flat of Mrs. Gakhar after breaking opening the lock.
This witness was cross examined by Ld. Defence Counsel wherein he deposed that before the police came he remained on the ground floor. His family members had gone to his brother's flat no. 235. He remained on the ground floor till police left along with the thieves. During the period Mr. Rajiv Nagpal also remained with him. Some other residents had also gathered there. He further deposed that he do not know what proceedings police had conducted upstairs and that since Mr. Nagpal was also with him, therefore, he was also not aware about the proceedings conducted by the police. He admitted that there was apprehension that the trespassers might be having arms/weapons, therefore, no one including Mr. Rajiv Nagpal dared to go upstairs along with the police. He deposed that he had not seen Mr. Nagpal signing any document and that to his knowledge he had gone to PS at about 3.30 AM to lodge the FIR. He further deposed that mother-in-law of Mr. Rajiv Nagpal was not there at the time of incident and that she arrived at around 4.00 AM along with her another daughter and son-in-law. He admitted that when Mrs. Gakhar arrived there her son-in-law Mr. Nagpal had already left for PS. He deposed that Mr. Nagpal or Mrs. Gakhar had not told him about the details of articles stolen from the flat. He also admitted State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 8/23 that he could not see properly the persons who were apprehended from the flat by the police due to darkness. He further deposed that when police brought those trespassers down stairs he could not even see them at that time as it was quite dark and he was standing along with other residents at a little distance. He deposed that there is a door on second floor which locks the stairs from second floor to terrace. There are four flats two on second floor and two on third floor. The flat of Mrs. Gakhar was on third floor. The keys of the door on the stairs remains with all four flat occupants. He further deposed that he cannot notice whether the staircase door was shut or opened when Mr. Nagpal informed him about the trespassers. Further that Mr. Nagpal had also not told him about the status of that staircase door. The door was opened by the resident of second floor while using the PA system from there flat itself. He deposed that he was not not aware nor he had seen what articles were stolen and that he also do not know whether any theft had taken place or not.
PW-6 Ct. Sunil Kumar deposed that on 19.9.2010 at about 4.00 am, DO SI Dharampal brought a rukka at computer room and accordingly he typed FIR bearing no. 242/2010 and took out two printouts of the FIR and handed over the same to DO SI Dharampal. He deposed that the printout Ex. PW-3/A is true printout of computer output based upon the tehrir of SI Shamim Khan as well as the statement of Sh. Ravinder Nagpal and has been fed by him in the computer in normal and routine course of his duties while using the computer for the said purpose. He certified that nothing happened during that period causing any error into the computer or affecting the accuracy of information so fed in the computer while performing the normal course of my activities.
PW-7 Ct. Sobir Singh deposed that on 19.09.2010 at about 1.15 AM when he was at PS North Rohini a call regarding theft was received vide DD No. 6A. He State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 9/23 deposed that he alongwith SI Shamim Khan, Ct. Devender, Ct. Rajnish had reached at B-5/272 Rohini, where they met Sh. Ravinder Nagpal who stated that some thieves have entered into the house of his mother in law on the top floor of the building. He deposed that he along with other police officials in the presence of complainant present there had apprehended all the six accused persons from the said building while they were trying to flee away from the terrace. He correctly identified the accused persons in the court. He further deposed that after apprehending, all the accused persons were searched. Accused Mahesh was found in possession of one Chopar. On measuring the length of the chopar was found 38-1/2 long. Accused Rahul was having in his hand one iron rod which was sharped from one side. Accused Sonu was having in his possession one screw driver. Mahesh was having in his possession one plastic pouch containing one golden chain, one silver chain, one chain having gungroo on it, one golden kara, one golden finger ring, ear tops, one silver coin, one watch Raido having golden chain in it. He deposed that all the stolen articles recovered from the accused persons were seized by the IO after converting them into sealed pullanda and sealing the same with the seal of 'SK' and were seized vide memo Ex.PW-1/B. The iron rod was seized vide memo Ex.PW-1/C. The lock of the flat which was in broken condition was also seized vide memo Ex.PW-1/E, screw driver which was recovered from accused Sanjay @ Sonu was seized vide memo Ex.PW-1/D. The sketch of the chopar was prepared which is already Ex.PW-1/G and it was also sealed in a cloth pullanda with the seal of 'SK' and was seized vide memo Ex.PW-1/F. He deposed that SI Shamim Khan had prepared a tehrir which Ct. Devender had taken to PS and got FIR number 242/2010 registered. He deposed that all the accused persons were arrested in his presence and their personal search was also conducted.
This witness was cross examined by Ld. Defence Counsel wherein he deposed that all the accused persons were apprehended from the roof of the State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 10/23 house at 4th Floor belonging to the mother-in-law of Ravinder Nagpal. He denied the suggestion that complainant is a planted witness or that accused persons have been falsely implicated in this case.
SI Shamim Khan is the IO of this case and has been examined as PW-7. He deposed that on 19.09.2010 he was posted at PS North Rohini as SI. On that day at about 1.15 AM when he was at PS North Rohini a call regarding theft was received vide DD No. 6A. He deposed that he alongwith Ct. Devender, Ct. Shobir, Ct. Rajnish reached at the place of occurrence i.e. B-5/272 Rohini, where they met Sh. Ravinder Nagpal who stated that some thieves have entered into the house of his mother in law on the top floor of the building. He deposed that Sh. Ravinder Nagpal further informed him that the thieves were present at the top floor and thereafter, he alongwith police officials and Ravinder Nagpal went to the terrace of top floor and there, he along with other police officials present there apprehended all the six accused persons from the said building while they were trying to flee away from the terrace. He correctly identified the accused persons in the court. He deposed that after apprehending the accused persons were searched. Accused Mahesh was having in his possession one Chopar. On measuring the length of the chopar was found 38-1/2 cm long. Accused Rahul was having in his hand one iron rod which was sharped from one side. Accused Sonu @ Sanjay was having in his possession one screw driver. Mahesh was having in his possession one plastic pouch containing one golden chain, one silver chain, one chain having gungroo on it, one golden kara, one golden finger ring, ear tops, one silver coin, one watch Rado having golden chain in it. He deposed that all the stolen articles recovered from the accused persons were seized by him after converting them into sealed pullanda and sealing the same with the seal of 'SK' and were seized vide memo already Ex. PW-1/B. The iron rod was seized vide memo already Ex. PW-1/C. The lock of State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 11/23 the flat which was in broken condition was also seized vide memo already Ex. PW-1/E. Screw driver which was recovered from accused Sanjay @ Sonu was seized vide memo already Ex. PW-1/D. The sketch of the chopar was prepared which is already Ex. PW-1/G and it was also sealed in a cloth pullanda with the seal of 'SK' and was seized vide memo already Ex. PW-1/F. He deposed that he recorded the statement of complainant Ravinder Nagpal Ex. PW-1/A and the said statement was attested by him at Point X. He further deposed that he prepared a tehrir which is Ex. PW-7/A and the same was handed over to Ct. Davender who took the same to PS and got FIR number 242/2010 registered. He deposed that all the accused persons were arrested by him i.e. accused Mahesh Kumar vide memo already Ex. PW-1/H1, Sanju @ Sanjay vide arrest memo Ex. PW-1/H2, accused Yunus @ Sandeep vide memo Ex. PW-1/H3, Rakesh vide memo Ex. PW-1/H4, Rahul vide memo Ex. PW-1/H5 and Ajay vide memo Ex. PW-1/H6. He deposed that he also also called for the crime team and crime team inspected the place of occurrence. He deposed that he also conducted the personal search of accused persons vide memos already Ex. PW-1/I-1, Ex. PW-1/I-2, Ex. PW-1/I-3 (H-3), Ex. PW-1/I-4, Ex. PW-1/I-5, Ex. PW-1/I-6. He deposed that he also prepared site plan Ex. PW-7/B. He further deposed that the complainant Ravinder Nagpal identified the recovered stolen articles belonging to his mother-in-law. He deposed that he also recorded the disclosure statements made by accused persons and also recorded the statement of witnesses and thereafter case property was deposited in malkhana and accused persons were sent to lockup.
This witness was cross examined by Ld. Defence Counsel wherein he deposed that they reached at the spot within few minutes of the receipt of the call and the call was received at about 1:35 AM. He further deposed that many public persons were present at the spot and amongst them he recorded the statement of Sachin Goel. He deposed that he also requested other public State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 12/23 witnesses to make the statements but they refused. He deposed that the call was made by PW Sachin Goel but he cannot tell the number of phone of Sachin Goel. He denied the suggestion that he was deposing falsely or that the accused persons have been falsely implicated or that the accused persons have been lifted from their house or that the recoveries were planted upon them.
PW-8 Inspector Sanjay Gade deposed that on 19.09.2010 while he being posted at I/C Mobile Crime Team Outer Distt, on the request of IO he went to the place of occurrence i.e. Flat B-5/272, Top Floor, Sector - 8, Rohini, Delhi along with other officials and that Ct. Deepak lifted three chance print from wooden almirah and Ct. Ravinder took the photographs.
PW-9 Ex. Ct. Ravinder deposed that on 19.09.2010 he was posted as photographer in Mobile Crime Team Outer Distt. On that day on the request of IO he went to the place of occurrence i.e. Flat B-5/272, Top Floor, Sector - 8, Rohini, Delhi along with other officials and that Ct. Deepak lifted three chance print from wooden almirah. He deposed that he took photographs and after developing the photographs it was handed over to IO. He proved the photographs along with negatives as Ex. PW-9/A
6. P.E. was closed vide order dated 18.10.2012 and statement of accused Rakesh Kumar U/s. 313 Cr.P.C was recorded to which the accused denied all the allegations leveled against him but preferred not to lead D.E. Thereafter the matter was fixed for arguments.
7. It has been submitted by Ld. APP that the prosecution has been able to State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 13/23 prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
8. Per contra Ld. Defence Counsel has argued that no incriminating material has come on the record against the accused persons and the prosecution has miserably failed to prove the case beyond reasonable doubt. She further submits that the accused has been falsely implicated in this case. It is submitted that neither the complainant nor the public witness (PW-5) has identified the accused present in the court comprehensively and complainant is in doubt as to whether the chopper Ex. P 1 was recovered from the possession of accused Mahesh or accused Rahul. Further that the complainant could not depose name of his neighbour who were present at the spot.
9. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
10. After going through the material on record and having heard the arguments advanced, I am of the I am of the opinion that prosecution has successfully brought home the guilt of the accused.
11. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 14/23 reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved;
and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Section 457 IPC provides "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."
Lurking house tress pass has been define by section 443 IPC. It provided as "whoever commits house-trespass having taken precautions to State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 15/23 conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit lurking house-trespass".
12. In order to prove the culpability of the accused u/s 457 IPC, the prosecution is required to prove the following ingredients:-
(i) That the accused committed lurking trespass by night or house-breaking by night;
(ii) That the house-trespass or house-breaking was in order to commit an offence punishable with imprisonment.
Section 380 provides "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. "
In order to prove the culpability of the accused u/s 380 IPC, the prosecution is required to prove the following ingredients:-
(i) That the accused committed theft;
(ii) That such theft was committed in any building, tent or vessel; and
(iii) That such building, tent or vessel was used as a human dwelling, or used for the custody of property.State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 16/23
13. The star witnesses of the prosecution i.e the complainant who was examined as PW-1 and the public witnesses who were examined as PW-2 and PW-5 have supported the case of the prosecution. PW-1 not only identified the accused persons as the one who trespassed the house of his mother-in-law on 19.09.2010 but also identified the case property that was stolen and later recovered from the possession of the accused persons at the time of their arrest. The accused persons, six in numbers were arrested from the spot only and the complainant admitted his signatures on the arrest memo and personal search memo which were Ex. PW-1/H 1 to PW-1/H 6 and Ex. PW-1/I 1 to I 6. The arrest memo bears the time of 07:00 am of all the accused persons and bears signature of the complainant Ravinder Nagpal. DD No. 6 A vide which information of theft at the said premises i.e. B 5/272 Rohini was given, at about 01:15 am i.e. just after the presence of the some unknown persons was detected by the complainant in the house of his mother in law is near in time. PW-5 Sachin Goyal who is the neighbour of the complainant has corroborated his version regarding the incident. PW-5 had called the PCR from his mobile No. 9818200724 and deposed about the apprehension of five to six persons from the house of mother-in-law of the complainant. Though this witness could not identify either of the accused persons but he deposed about the number of the persons who entered in the house to be precise those arrested.
14. PW-4 Ct. Devender, PW-7 Ct. Sobir Singh and IO SI Shamim Khan who was examined as PW-7 have lend further corroboration to the prosecution story. They proved that on receipt of information vide DD No. 6 A they reached at the spot where they met the complainant who told them that some unknown persons have trespassed the house of his mother-in-law. They correctly identified all the accused and have corroborated each other in their testimonies regarding State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 17/23 arrest and preparation of the documents and regarding recovery of the case property as well as weapons from the accused.
15. The arguments of Ld. Defence Counsel that as has come in cross examination of complainant, he could not depose name of his neighbour who were present at the time of recovery at the terrace, does not hold water. In modern society, particularly in metropolitan cities, people barely know their neighbours. Extended working hours, different shift timings, touring jobs, jobs abroad and many such genuine reasons make it difficult for knowing anything about those living next door and it is no wonder that the complainant do not know name of his neighbour.
16. Interestingly, a question posed by the Ld. Defence Counsel to the complainant in his cross examination gains importance here. It fortifies the findings of this court that the accused was indeed apprehended at the spot along with the stolen property.
The suggestion as given during the cross examination of PW-1 read as under:
"I am not sure whether Choper was recovered from Rahul. Vol since it was dark and recoveries were effected simultaneously, therefore, I am unable to identify individually the person from whom what article was recovered. At the time of recovery at the terrace 2-3 neighbours were also present but I cannot tell their names."
These fatal suggestions proved the presence of the accused at the spot as well as the fact that the stolen articles were recovered from their possession.
State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 18/2317. As far as contention of Ld. Defence Counsel that the complainant has faulted in deposing about recovery of chopper Ex. P 1 from accused, this court is of the opinion that it is not so material as to discard or look upon his testimony with suspicion. Human memories apt to blur with passage of time. A witness often tends to mix up facts during piercing cross examination which in this case was conducted at length, the testimony of this witness cannot be looked at suspicion. A witness cannot be expected to narrate the incident like a parrot. Some improvements/contradictions may creep in due to fading of memory with lapse of time. These minor contradictions should not be given undue importance unless they are so glaring so as to destroy the confidence in the witness.
18. It has been held by the Hon'ble Supreme Court in Jamal Mirza v. State reported in 2012 II AD (Delhi) 366.
"While appreciating the testimonies of witnesses, it was necessary that the Courts be realistic in their expectations from witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory, the power to register events and recall the details. It was to be the totality of evidence on record and its credibility that should eventually determine whether the prosecution was able to prove the charge against the Appellants or not and slight discrepancies which did not shake the basic version of the witnesses should not be given undue weightage or importance to dislodge the prosecution's case.
Since the testimonies of all the witnesses established, beyond doubt, the presence and specific role of each of the accused at the time and place of occurrence and their participation in the commission of the offence and since no State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 19/23 ill-will or ulterior motive could be imputed to the witnesses in their cross- examination or anything material be elicited to disbelieve the facts deposed by them, it was held that there was no illegality or irregularity in the findings recorded by the Trial Court basing conviction of the Appellants on the evidence as provided by the prosecution witnesses as minor contradictions or discrepancies in the statements of prosecution witnesses were bound to occur since they were recorded after lapse of a long time."
19. In the instant case there is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. Presence of the accused persons was noted by the complainant about 1.15 a.m , DD No. 6A pertaining to the incident is timed at 1.35 a.m, registration of FIR is at 4.00a.m, arrest of accused persons is timed at 7.00 a.m which all points that the sequence of events are natural and there was no scope of manipulation or that of false implication. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link. In his statement U/s. 313 Cr.P.C the accused gave evasive answers and did not clarify as to how the case property was recovered from his possession. No reasons have been given either in his statement u/s 313 Cr.P.C or during arguments as to the reasons of his presence along with other convicts, inside the house of mother in law of the complainant on the day of the incident. Recovery of the stolen articles and that of weapon of house breaking has been recovered from the possession of the associates of the accused Rakesh who have own their own free will have pleaded guilty and have been convicted State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 20/23 accordingly by Ld. Predecessor. All the accused were spotted and arrested at the same point of time and from the same place so it cannot be said that since nothing was recovered from the person of accused Rakesh, he should be innocent. Ld. Defence Counsel has not clarified as to why the accused has been involved in the instant case. There being no history of any previous animosity between the accused persons and the complainant, there is no reason for the victim to have falsely implicated the accused. Moreso to call his aged mother in law(owner of the house), all the way from Gurgaon late night.
20. The contentions of the the Ld. Defence counsel that no public person as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. In the instant case apart from the complainant, a public witness namely Sachin Goel has been cited and there is no dearth about the number of witnesses that could have been cited by the prosecution.
21. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 21/2322. Now adjudicating upon whether all the accused persons had common intention to commit house tress pass by night with intention to commit theft in the house of PW-2 Smt. Prakash Gakhar and that if Sec34I.P.C can be attracted to fix their liability.
In Virender Pal @ Neelu v. State (Delhi)(D.B.) 2011 CriLJ 3082Hon'ble High Court of Delhi has observed :
" Section 34 IPC does not create a substantive offence. It simply states that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The constructive liability under this Section would arise if following two conditions are fulfilled :- (i) there must be a common intention to commit a criminal act and (ii) there must be participation of all the persons in doing of such act in furtherance of that intention . Common intention requires a prior concert or pre-planning. Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of common intention . In most cases it has to be inferred from the act and conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 22/23 offence with which he could be convicted."
23. Since all the accused persons had participated in the commission of the offence ,all arrested at same point of time and place with the stolen articles and equipments of house breaking ,it can be safely concluded that all the accused persons were having common intention to commit house tress pass by night with intention to commit theft in the house of PW-2 Smt. Prakash Gakhar.
24. In view of the above discussion, observations and evidence on record, in my opinion the prosecution has been been successfully able to prove the offence under Section 457/380/34 IPC against the accused. Therefore I hold the accused guilty of offence under Section 457/380/34 IPC.
25. Now let the matter be listed for arguments on sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on March 21st, 2013.
It is certified that this judgment contains 23 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 21/03/2013 State V/s Mahesh Kumar & Ors. FIR No. 242/10 PS: North Rohini Page No. 23/23