Delhi District Court
State vs . Kunal @ Kuldeep on 30 July, 2018
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTHWEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Kunal @ Kuldeep
FIR No. 493/17
PS : Uttam Nagar
U/s 457/511 IPC
Date of Institution : 22.09.2017
Date of reserving of order : 23.07.2018
Date of Judgment : 30.07.2018
JUDGMENT
1. Serial No. of the case : 10406/17
2. Name of the Complainant : Sh. Sanjay Bhatiya
S/o Late Sh. K.C. Bhatiya
R/o H.No. N Extension,
Plot No. 2B, Mohan Garden,
Gurudwara Road, Uttam Nagar
New Delhi
3. Date of commission of offence : 24.07.2017
4. Name of accused person : Kunal @ Kuldeep
S/o Sh. Anil Kumar
R/o H.No. E147, Mansaram
Park, Near Kali Mandir,
Matiyala, New Delhi
5. Offence charged : Under Section 457/511 IPC
6. Plea of accused : Not guilty
7. Final Order : Convicted
FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 1 of 14
P.S. Uttam Nagar
Vide this judgment, I shall decide the case against Kunal @ Kuldeep for allegations of attempt to commit house breaking in the night and attempt to commit theft from a dwelling house. BRIEF REASONS FOR ORDER:
The story of the prosecution is as follows:
1. The accused Kunal @ Kuldeep has been chargesheeted for committing offences punishable under Section 457/511, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It has been alleged by the prosecution that on 24.07.2017 at about 9.00 PM at N Extension, Plot No. 2B, Mohan Garden, Gurudwara Road, Uttam Nagar, New Delhi, accused Kunal @ Kuldeep attempted to commit house breaking by breaking open the lock of the said house in order to commit theft.
2. Complaint was made and FIR was registered. IO conducted the investigation. After completion of investigation, the present chargesheet was filed for offences punishable under Section 457/380/511 IPC. Cognizance of offence was taken and accused was summoned to face trial. The copies were supplied under Section 207 Cr.P.C.
3. After hearing the parties, vide order dt. 12.10.2017 charge for offence u/s 457/511 IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. Prosecution Witnesses were summoned for evidence and seven prosecution witnesses were examined to prove the case of the prosecution against the accused.
FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 2 of 14 P.S. Uttam Nagar
(i) PW1 Sanjay Bhatia was complainant. He deposed that the incident was of 25.07.2017. He was at his home. He lived on the 3rd floor. Below him, on the second floor lived the family of Rajeev Handa. At about 08:0008:30 PM, he heard sound of "thak thak". Thereafter, he went to the balcony and saw that somebody was trying to open the gate. He went down using the stairs to see what was happening. He saw that accused Kunal was trying to open the gate. He asked him as to who he was. He told him that landlord had asked him to repair the lock. PW1 told him that the landlord was not there for last 1012 days. Thereafter, accused Kunal attempted to run away after trying to attack PW1. However, PW1 caught hold of him. However, accused dragged him from the second floor staircase to the ground floor. When PW1 raised alarm, his children and neighbours came and restrained accused Kunal. Thereafter, they called at 100 number. The accused was having one plass and pana. He proved seizure memo of the same as Ex. PW1/A. He proved his complaint as Ex. PW1/D. Witness correctly identified the accused before the court. In his crossexamination, he stated that he made a call at 100 number. Police reached at the spot after about 30 minutes of his calling the police. Police remained at the spot for about 1015 minutes. He stated that police did not prepare any document at the spot in his presence. He stated that he could not tell whether the fact regarding the dragging by accused was written in his complaint. He voluntarily stated that the application for complaint was written by a third person. He stated that he did not tell the police that his neighbours were also FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 3 of 14 P.S. Uttam Nagar present when the accused was apprehended by him. Police did not take any photographs of the gate where accused was apprehended. No police officials came with them from the police station to the place of incident. After the incident, no police official met him either at the place of incident or at the police station.
(ii) PW2 ASI Abhay Raj was Duty Officer who proved DD entry no. 124A as Ex. PW2/A. Accused did not prefer to cross examine the witness.
(iii) PW3 ASI Kaalicharan was Duty Officer who proved FIR Ex. PW3/A, endorsement on rukka Ex. PW3/B, certificate u/s 65B of Indian Evidence Act Ex. PW3/C and DD no. 7A Ex. PW3/D. In his crossexamination, he stated that it took about 10 minutes to get the FIR registered through CIPA. He stated that he handed over original copy of the FIR to Ct. Uday Shankar at 1:00 am.
(iv) PW4 was Sh. Rajeev Handa. He deposed that on 24.07.2017, he had been out with his family for a marriage at his relative's house, TransYamuna. When he got a call from Mr. Bhatia, who resided above him, who told him that he had caught one burglar after hearing a sound of thakthak. He did not loose any of his possessions. Thereafter, he came to PS Uttam Nagar. In his crossexamination, he stated that he left his house on 19.07.2017. He could not tell the name of colony in which he went FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 4 of 14 P.S. Uttam Nagar at the house of his relative but it was transYamuna. He stated that police recorded his statement on 24.07.2017 at PS Uttam Nagar and his statement was recorded on a Laptop. He could not tell the name of the person who recorded his statement. He did not visit the police station after the day when his statement was recorded. The police visited his house in last month with the summon. He stated that police made a call to him that they were at his residence. He replied that it was not possible for him to meet them. He could not tell the date on which the phone call was received by him from police. He could not tell whether police took any photograph of his house of not.
(v) PW5 was PSI Uday Shankar Kumar. He deposed that on 24.07.2017 he was on night emergency duty and one call was received vide DD No. 124A and he alongwith IO SI Gajender Kumar reached at the spot i.e. N Extension Plot No. 2B, Mohan Garden Gurdwara where they did not meet anyone but got to know that complainant alongwith accused had gone to the police station. Thereafter, they came at police station where complainant Sanjay Bhatia gave his statement and thereafter, he got the case registered. Thereafter, he took the accused for getting his medical conducted. Thereafter, after preparing the dozior he was produced before the court for his remand.
In his cross examination, he stated that he was on duty from 8 pm on 24.07.2017 to 8 am 25.07.2017. He stated that he reached at the spot at about 9 pm alongwith SI Gajender. Passersbys FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 5 of 14 P.S. Uttam Nagar told them that complainant had gone to police station alongwith accused. The complaint was written by the complainant in his handwriting. He did not know whether IO had recorded the statement of any other public person or not. He did not visit the place of incident after registration of FIR. Sanjay Bhatia gave one plass, pana and wrench to him.
(vi) PW6 was Rohitash Chandra who proved entry at serial no. 1390 in admission record register as Ex. PW6/A, application for registration as Ex. PW6/B and school leaving certificate as Ex. PW6/C. Accused did not prefer to cross examine the witness.
(vii) PW7 was SI Gajender Kumar. He deposed that on 24.07.2014, on receiving DD No. 24A he left the PS alongwith Ct. Udai Shankar and reached at the spot which was at Mohan Garden Uttam Nagar where they got to know that the complainant alongwith accused had gone to the police station. Thereafter, he came back to police station. He met complainant Sanjay Bhatia who presented the accused and gave his hand written statement on the basis of which he prepared the rukka Ex. PW7/A. Thereafter, after getting the case registered the accused was arrested vide arrest and personal memo Ex PW1/B and Ex. PW1/C. The complainant presented the plass and pana which he had recovered from possession of the accused and PW7 seized the same vide seizure memo Ex. PW1/A. He proved site plan as FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 6 of 14 P.S. Uttam Nagar Ex. PW7/B. In his crossexamination, he stated that he reached at the spot at about 10:15 pm alongwith Ct. Udai Shankar by a private motorcycle which belonged to him. He met some public persons at the spot who informed him that the accused had been taken to the police by the complainant. He did not record their statement. There were 45 persons with complainant who met him at police station. Complainant gave him a complaint but he could not tell where the said complaint was written by the complainant. Same was not written in his presence. Ct. Udai Shankar was also with him when complainant gave him the said complaint. It took 3045 minutes to get the FIR registered through Ct. Udai Shankar. Nothing was recovered from the accused during his personal search. Complainant handed him one plass and pana. He did not seal the same. Complainant remained at PS for about 2 ½ - 3 hours. He visited the place of incident on 25.07.2017 at about 3:00 am. He came to the place of incident alongwith Ct. Udai Shankar and just after the complainant. He did not take any photograph of the lock or the gate of the place where the incident is stated to have happened. He alongwith Ct. Udai Shankar remained at the spot for about 1015 minutes. Accused was medically examined on 25.07.2017. In the intervening night of 24/25.07.2017, mother of accused came to the police station. He did not know that who informed the mother of the accused regarding the incident. He got the contact number of the owner of the house i.e. Rajeev Handa on 24.07.2017 itself. He tried to contact the owner of the house but he could not contact him. He stated FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 7 of 14 P.S. Uttam Nagar that on 27.07.2017, house owner came to the police station. He did not record the statement of mother of the accused. The disclosure statement of the accused was recorded in the presence of complainant but he did not obtain the signature of the complainant. He did not remember whether he obtained the signature of complainant on site plan.
5. Thereafter, prosecution evidence was closed.
6. Statement of accused was recorded and all the incriminating evidence coming on record was put to the accused in which he submitted that he had been falsely implicated in the present case. He did not lead evidence in his defence. Thereafter, final arguments were addressed.
7. Thereafter, final arguments were advanced by Ld. APP and Ld. Defence counsel.
8. It was argued by Ld. APP for the state that offence had been sufficiently proved as accused had been apprehended outside the house of the complainant. Weapon of house breaking had also been seized from him which had been proved in the court. Nothing else remained to be proved to show that the accused had attempted to commit house breaking. Hence, he should be convicted and punished U/s 457/511 IPC.
9. On the other hand, Ld. LAC for accused argued that there are several contradictions in the statements of witnesses and in the presence of contradictions the version of the complainant cannot be believed and he does not remain worthy of credit and hence, accused FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 8 of 14 P.S. Uttam Nagar should be acquitted.
10. Ld. LAC for the accused has argued that PW4 Rajeev Handa was the owner of the house and he left his house on 19.07.2017 for a wedding and on 24.07.2017 he received a call that attempt for theft had been committed in his house in his absence. In his examination, he stated that his address H.No. 2B, 1st Floor, Mohan Garden and whereas in statement of PW1 Sanjay Bhatia it was stated by PW1 that the incident was of 25.07.2017 and he was living on the 3rd floor. He further stated that below him on the second floor the family of Rajeev Handa was living. Ld. LAC for accused has pointed out discrepancies here itself that whereas the address of PW4 Rajeev Handa is stated to be first floor by PW4 Rajeev Handa himself, the complainant Sanjay Bhatia has stated that Rajveev Handa used to stay on the second floor below him.
11. Ld. LAC has also pointed out that the incident pertains to 08:00 pm to 08:30 pm as per complaint of complainant and arrest of the accused is of 02:15 am on 25.07.2017. The delay of almost six hours in the arrest of the accused has not been explained.
12. The complainant has also stated that the complaint was given by him to the police but the complaint was written by a third person who was also present in the police station with him but that third person was neither examined as witness by prosecution nor was included in the list of witnesses.
13. The complainant also stated that police did not prepare any document in his presence. However, the arrest memo and the FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 9 of 14 P.S. Uttam Nagar personal search memo contains the signature of the complainant.
14. Another contradiction pointed out by Ld. LAC for the accused is that PW5 PSI Uday Shankar Kumar and IO also stated in their crossexamination that the complaint was written by the complainant in his own handwriting but complainant himself stated that the complaint was not in his handwriting but in handwriting of a third person.
15. As per the documents the accused was taken for medical on 25.07.2017 at 03:15 am, another one more than an hour after the arrest memo. That delay has not been explained.
16. After hearing the arguments and going through the record, I have come to the following observations:
The accused has been charged u/s 457/511 IPC.
As per Section 457 IPC, whoever commits lurking housetrespass by night, or housebreaking 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.
As per section 511 IPC, whoever attempts to commit an offence punishable by this Code with [imprisonment of life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 10 of 14 P.S. Uttam Nagar punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence] or with such fine as is provided for the offence, or with both. PW1 Sanjay Bhatia is the main witness who after hearing the noise of "thak thak" from the house below his own saw that somebody was trying to open the gate. He saw the accused trying to open the gate and immediately inquired from him. The accused tried to escape and even attempted to attack the complainant. The complainant immediately caught hold of him and the accused in order to escape from the spot, dragged the complainant from second floor to the ground floor. The accused was stated to be having a plass and pana which were later on seized by the police vide seizure memo Ex. PW1/A. The case property was produced in the court and was duly identified by the witnesses. The discrepancies/contradictions pointed out by the counsel for accused are with respect to the date of offence as complainant states the same as 25.07.2017 whereas all the witnesses state that date of offence as 24.07.2017 and date of arrest as 25.07.2017. This is only a contradiction which does not itself falsify the story of the prosecution. Secondly, the floor stated by the complainant of PW4 (Victim) is second floor whereas he himself states that he resides on the first floor of the same building. This again in the opinion of the court is only a minor contradiction. As long as the remaining address is the same where it is stated that the accused was FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 11 of 14 P.S. Uttam Nagar on the second floor instead of first does not again caste a doubt on the veracity of the witness.
17. As far as Ld. LAC has pointed out on the gap of six hours between the time of incident and the arrest and whether the complaint was written by the complainant or some third person is also not a material contradiction and does not in any way falsify the story of the prosecution.
18. The sole fact that the accused was caught red handed by the complainant and the accused was not known to the complainant Sanjay Bhatia or PW4 Rajeev Handa prior to the incident itself shows that the complainant had no reason whatsoever to falsely implicate the accused. The entire chain of circumstances is complete qua the offence, the arrest and the identification of the accused in the court by the complainant and witnesses. The seizure of instruments of house breaking has also been duly proved. The attempt was made to break open the door of the house of witness PW4 as a penultimate act of trying to break open the main gate with the help of a plass and pana was committed. Hence, accused has attempted to commit house breaking at night.
19. In Vadivelu Thevar v. The State of Madras (1957 SCR
981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 12 of 14 P.S. Uttam Nagar sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
20. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
21. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 13 of 14 P.S. Uttam Nagar the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
22. Hence, in view of above discussion, I am of the considered view that prosecution has succeeded in establishing the guilt of the accused U/s 457/511 IPC. Therefore, accused stands convicted for the offence U/s 457/511 IPC.
23. Accordingly, accused Kunal @ Kuldeep stands convicted u/s 457/511 IPC.
24. Now to come up for arguments on sentence on 06.08.2018.
Pronounced in the open court on 30.07.2018 (PURVA SAREEN) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi Digitally signed PURVA by PURVA SAREEN SAREEN Date: 2018.08.01 16:22:39 +0530 FIR No.493/17 State Vs. Kunal @ Kuldeep Page No. 14 of 14 P.S. Uttam Nagar