Delhi District Court
Ishtiaq @ Mohd. Arif vs The State (Nct Of Delhi) on 4 December, 2012
IN THE COURT OF SH. LAL SINGH, ASJ-02/FTC, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0056062012
CA No. 87/12
Ishtiaq @ Mohd. Arif
S/o Noor Mohmmad,
R/o Village Bhargaowa,
PS Sagawli,
District Motihari,
Bihar.
(Presently confined at
Central Jail No. 4,
Tihar, New Delhi) ........... Appellant
versus
The State (NCT of Delhi) .......... Respondent
Date of institution of the case : 30.08.2012
Date when the case reserved for judgment : 19.11.2012
Date of announcement of judgment : 04.12.2012
JUDGMENT
This appeal has been directed against the judgment and order on point of sentence dated 04.06.2012 passed by the Ld. MM -05, New Delhi in FIR No. 211/11, PS B.K. Road, whereby the appellant was convicted for the offence u/s 457/380 read with 511 IPC and sentenced CA No. 87/12 1/7 for three years RI for the aforesaid offences.
The brief facts as per the prosecution case are that on intervening night of 28/29.12.2011 the complainant / PW-4 Mritunjay Singh who worked as security guard in Dhampur Sugar Limited Company, was woken up at around 2:00 am due to sound made as a result of actus reus i.e wrongful act of accused Ishtiaq. Complainant on the said intervening night saw match stick being lit up by accused and found upon standing and the window was open and his own room was locked from outside by the accused. Then, he called up at 100 number and the police officials came there. The accused was caught by the police and the door was unlocked. Accused had entered office of the said company with intention to commit theft. Thereafter, accused was arrested. Rukka was prepared, upon his complaint, FIR was got registered. Police officials i.e PW-2, PW-3 and PW-5 took various steps during course of the investigation.
The Ld. Trial Court charged the accused for the offence u/s 457/380 IPC read with section 511 IPC. The appellant/accused pleaded not guilty to the charge and claimed trial. The prosecution has examined five witnesses in the present case.
I have heard the arguments. Ld. Amicus Curiae for the appellant submitted that the appellant/accused has not committed any offence and no offence can be made out against the appellant/accused in the given facts and circumstances. He further submitted that there is material CA No. 87/12 2/7 contradiction in the testimonies / statements of the witnesses, which goes against the prosecution case. He submitted that the appellant/accused also pleaded in his statement u/s 313 Cr.P.C before the Ld. Trial Court that he was being chased by a dog and the dog had beaten him near his ankle and he had not gone there to steal anything but was there only to prevent himself from attack of dog. Ld. Amicus Curiae further submitted that accused also stated that he was given two injections by the concerned doctors, when he was taken for medical examination. Ld. Amicus Curiae further submitted that otherwise also, the appellant/accused remained in custody since the date of his arrest and he is in custody for about a year in the present case and at least the appellant/accused deserves leniency, keeping in view his young age.
On the other hand, Ld. Addl. PP for the state submitted that there is no illegality or impropriety in the judgment and order on sentence passed by the Ld. Trial Court. He further submitted that there is no merit in appeal and same deserves to be dismiss.
I have gone through the record and perused the file. In the present case, the prosecution has examined five witnesses. PW1 HC Rajender Singh has recorded the DD No. 31 A vide Ex.PW1/A regarding the information of some thieves entering into in the company no. 24, School Lane, Second floor, near Lalit Hotel building. PW1 also recorded the FIR of the present case vide Ex.PW1/B and made his endorsement on the CA No. 87/12 3/7 rukka vide Ex.PW1/C. PW2 Ct. Pankaj Kumar on receiving the wireless message went to the spot, where in the meanwhile, ASI Neeraj Kumar also came there and they apprehended the alleged thief, who is the accused in the present case. On inquiry, the accused revealed his name as Instiaq. Thereafter, PW2 went to the PS and got registered the FIR. PW3 SI Neeraj Kumar alongwith PW2 Ct. Pankaj Kumar apprehended the accused. PW3 stated that in the meantime, IO ASI Budh Dev also reached at the spot and he handed over the accused to him.
PW4 Mritunjay Singh deposed that on 28/29.12.2011, at about 02:00 AM, when he was sleeping, he heard window of his room being opened by somebody and he also saw a light of match stick. He further stated that the thief locked his door from outside. Thereafter, he called police on 100 number, where upon the police person came there after five minutes and they caught the thief, who was hiding in the basement. The police recorded the statement of PW4 vide Ex.PW4/A. PW5 is the IO of the case, who also went to the spot on the intervening night of the incident on receiving of DD No. 31 A regarding the catching of one thief. At the spot, i.e 24, School Lane, where SI Neeraj, Ct. Pankaj and complainant Mritunjay met him and complainant handed over him accused Instiaq @ Mohd. Arif alongwith one statement Ex.PW4/A. PW5 sent the rukka through Ct. Pankaj for registration of CA No. 87/12 4/7 FIR and got registered the FIR vide Ex.PW1/B. The accused was arrested vide Ex.PW2/A. PW5 also prepared the site plan vide Ex.PW5/B and recorded the disclosure statement of accused vide Ex.PW2/C and also got medically examined the accused vide Ex.PW5/C. It has come in evidence of PW4 that accused opened the window of his room and thereafter he called the police on 100 number and police personal came to the spot and apprehended the accused. PW2 and PW3 also deposed that the accused was apprehended from the spot i.e 24, School Lane. Therefore, there is no dispute that the accused was apprehended at the spot by PW2 and PW3 in the presence of PW4 complainant, on the intervening night of incident. It has also come in evidence of PW5, IO of the case that when he went to the spot, the accused was already apprehended by SI Neeraj Kumar and Ct. Pankaj and complainant and thereafter, the complainant handed over the accused to him.
However, in the statement u/s 313 Cr.P.C, appellant / accused pleaded that he was falsely implicated in the present case and the actual fact of the case was that he was being chased by the dog and the dog had beaten him near his ankle and he had not gone there to steal anything but to save / prevent himself from the attack of the dog. He further pleaded that he was given two injections by the doctor, when he was medically examined.
CA No. 87/12 5/7
So far as, the plea taken by the accused, I am in agreement with the observations of the Ld. Trial Court that since the PW4 / complainant has no enmity with the accused, hence, why he should implicate any unknown person falsely in a case, particularly in the circumstances, when PW4 / complainant stated that accused was no known to him. Moreover, the presence of accused at the spot has even not been disputed by the accused. Though, the accused has taken the plea that he had went to the premises of the complainant to save himself from dog and not to steal. The plea taken by the accused in his statement u/s 313 Cr.P.C does not seems trustworthy and therefore, it can not be believe.
After analyzing the evidence on record, it has come in evidence that the appellant/accused was apprehended from the spot by PW2 and PW3 in the presence of PW4 complainant and after the apprehension of the accused from the spot, accused was handed over to PW5 IO of the case, who arrested the accused in the present case.
Therefore, there is no illegality or infirmity in the judgment of conviction passed by the Ld. MM-05 / Trial Court. However, keeping in view the submissions of Ld. Amicus Curiae for the accused that accused is a very poor person and he remained in custody since the date of his arrest in the present case and remained in custody for about one year and further, the accused being very young person, lenient view may be taken against him, particularly on the point of sentence passed by the Ld. Trial CA No. 87/12 6/7 Court. In the given facts and circumstances of the case, I am of the opinion that the appellant / accused deserves leniency qua the substantive sentence of imprisonment awarded by the Ld. Trial Court.
Therefore, keeping in view, the over all fact and circumstances of the present case into consideration, the sentence of three years passed by the Ld. Trial Court for the aforesaid offences is converted into the period already undergone by the appellant /accused in the present case.
Appeal is accordingly disposed of in the aforesaid terms. Copy of the judgment be given to the appellant / accused free of cost.
The trial court record be sent back alongwith copy of the judgment. Appeal file be consigned to record room.
Announced in the open court (LAL SINGH)
on 04th December, 2012 ASJ-02/FTC, PHC/ND
04.12.2012
CA No. 87/12 7/7