Delhi District Court
State vs . Vicky on 30 January, 2013
IN THE COURT OF SH. A.K. AGRAWAL, MM-VII (East)
KARKARDOOMA COURTS, DELHI
FIR. No. 137/99
PS Shakarpur
Offence Complained of : 380/454 IPC
Date of commission of Offence : 05.4.1999
Unique Case I.D. No. : 02402R039712002
Serial No. : 2341/09
JUDGMENT
STATE Vs. VICKY Vicky S/o Sh. Balbir Singh R/o H.No.83, Krishan Kunj, Laxmi Nagar, Delhi-92.
................................ACCUSED Ram Prakash Tiwari.
S/o Sh. Ghanshyam Tiwari
R/o H.No. 312, Gali no.5, Pragati Vihar,
Khora Colony, Ghaziabad, U.P.
....................COMPLAINANT
Date of Institution : 17.07.2002
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 08.01.2013
Date of pronouncement : 23.01.2013
Final order : Convicted
Brief reasons for the decision of the case: -
1. Briefly stated the prosecution case is that on 05.04.1999 at about 9 AM, accused Vicky committed house tress pass at H.No.81C, Krishan Kunj, Laxmi Nagar, belonging to complainant Ram Prakash Tiwari and also FIR No.137/99 State vs. Vicky Page No.1 of 15 committed a theft of Rs. 12,000/- from the house. Accordingly, this FIR was registered against the accused for offences punishable u/s 380/454 IPC. The accused was also subsequently arrested however, no recovery could be effected from him. After completion of investigation, charge sheet was filed against the accused for offences punishable u/s 380/454 IPC on 17.07.2002 and cognizance was taken on the same day.
2. Charge was framed against accused on 03.02.2004 for offence punishable u/s 380/454 IPC to which accused pleaded not guilty and claimed trial.
3. During PE, the prosecution examined five witnesses in support of its case.
PW1 is W/ASI Usha Verma, the duty officer, she proved the FIR. The copy of FIR Ex. PW1/A.
4. PW2 is complainant Ram Prakash Tiwari who deposed that on 05.04.1999 at about 9AM he was cleaning his scooter downstairs of his house at 81 C, Krishan Kunj, Laxmi Nagar, when he heard call from his wife who had come out after taking bath, that there was a thief inside the house. On hearing the call, he ran upstairs and found that accused Vicky was running from the roof alongwith money in his right hand. He (this witness) checked his room and found that all the articles were scattered and the almirah was open. On checking the almirah, he found that Rs.12,000/- which he had given to his wife were missing from the almirah. Thereafter, he called police and informed them about the incident. His statement before police is Ex.PW2/A. He further deposed that on 20.09.99, the accused was arrested by police at the instance of his wife. He correctly identified the accused.
5. PW3 is Chanchal Tiwari, wife of complainant, who deposed that on 05.04.1999 at about 9 AM when she was coming out from the bathroom, she saw accused Vicky hurriedly coming out from the room. She also saw FIR No.137/99 State vs. Vicky Page No.2 of 15 that accused was having currency notes of Rs.100/- denomination in his right hand. She also deposed that his husband had given Rs.12,000/- to her for making some payment. When she checked the room she found that the articles were scattered and the almirah was open. She raised alarm of 'chor chor' upon which his husband came upstairs and called the police. She also deposed that besides Rs. 12,000/-, no other article was stolen. The accused fled away from the spot through the roof of the house as his (accused) house was adjoining to their (witness's) house. She also deposed that the money could not be recovered. The accused was arrested on 20.09.1999 on her identification. She also correctly identified the accused.
6. PW4 is Ct. Satpal who joined investigation alongwith IO HC Amarpal on 20.09.1999. The accused was arrested in his presence. The arrest memo of accused is Ex. PW4/A and the personal search memo is Ex. PW4/B. He correctly identified the accused.
7. PW5 is HC Amar Pal, the IO of this case. He deposed that on 05.04.1999 on receiving DD no.8/A he reached the spot and met the complainant and recorded his statement. Thereafter, he got the FIR registered through Ct.Subhash. After registration of FIR, he prepared the site plan Ex. PW5/A. The witness further deposed that he went to the house of accused with the complainant but could not find the accused there. Then on 20.09.1999 he arrested the accused but could not recover the money. He correctly identified the accused.
8. Thereafter, PE was closed. Statement of accused was recorded u/s 313 Cr.P.C. r/w 281 Cr.P.C. on dt. 02.12.2011, wherein accused stated that he was innocent as he had already gone for work at the time of incident. Accused also stated that he used to talk to one Swati (sister of complainant) to which complainant had objected and therefore he was FIR No.137/99 State vs. Vicky Page No.3 of 15 falsely implicated in this case.
9. During DE, the accused produced three witnesses. DW1 is Balbir Singh, father of accused, who deposed that his son Vicky and Swati Tiwari (sister of complainant) were having friendship. PW3 had seen them talking to each other on the roof to which she had objected and complained to him (this witness) about the conduct of accused. He also stated that since he (this witness) was from Jatav community and the complainant was from Brahmin community, the complainant did not approve of the relations between the accused and Swati. He also produced his caste certificate which is Ex.DW1/A. Witness also deposed that Swati was residing with her brother PW2 Ram Prakash and was studying in Govt. Girls Sr. Secondary School, Lalita Park at the time of incident.
10. DW2 is Malti Shukla, who deposed that she was the owner of H.No. 81C, Krishan Kunj in which complainant Ram Prakash used to live as tenant. She deposed that Ram Prakash's sister (whom she knew as Pinki) had been brought to their house for purpose of study. She also deposed that she was not aware that during the period of 1999-2000 accused Vicky was involved in any illegal activities like theft or not.
11. DW3 is Seema Bhotia, Teacher from Govt. Girls Senior Secondary School, Lalita Park. She brought the original Application Form regarding admission of student Swati Sharma and other relevant record. The copy of original application admission form is Ex.DW3/A, copy of transfer certificate is Ex.DW3/B and copy of page of admission register bearing admission no.933 dt. 24.07.1993 is Ex.DW3/C. She also stated that as per the school record, the address of Swati was H.No.81, Krishan Kunj and her date of birth was 01.12.1982.
12. Thereafter, DE was closed. During final arguments, the Ld. APP prayed for FIR No.137/99 State vs. Vicky Page No.4 of 15 conviction of the accused stating all the prosecution witnesses have fully supported the case. On the other hand, Ld. Defence counsel argued that the accused has been falsely implicated by the PW2 complainant Ram Prakash as the accused was having friendship with the sister of PW2 which the PW2 and PW3 did not approve due to their different castes. He also argued that DW3 has proved that the sister of PW1 namely Swati Tiwari was staying with her brother at the aforesaid residence of PW1 at the time of incident. He also argued that the testimony of PW2 and PW3 is contradictory as PW2 has himself stated that he came upstairs only after PW3 raised alarm of "chor-chor" which fact is corroborated by PW3, so PW2 is not the eye witness of the incident but he claims to be the eye witness. He also argued that besides PW2 and PW3 who are husband and wife, there is no other eye witness of the incident which is surprising as there were other public persons also present at the spot as per allegations. He also argued that the DW2 who was the landlord of the house has also denied that she was aware of any theft committed by accused. He also pointed out other contradictions in the prosecution evidence and prayed that the accused be acquitted.
13. In the instant case, the accused is charged for offences of committing lurking house trespass in order to commit an offence and for committing theft both acts being punishable u/s 454/380 IPC. In order to prove offence u/s 454 IPC, the prosecution is required to prove the all following points:
13.1 Firstly, the accused committed criminal trespass in the house of the complainant as required u/s 442 IPC.
13.2 Secondly, the accused took precaution to conceal his presence in the house of the complainant as required u/s 443 IPC, and 13.3 Thirdly, the lurking house trespass was committed in order to commit FIR No.137/99 State vs. Vicky Page No.5 of 15 some offence as required u/s 454 IPC.
14. Furthermore in order to prove the offence punishable u/s 380 IPC, the prosecution in addition is also required to prove the following points:-
14.1 The commission of theft as required u/s 378 IPC.
14.2 The place of theft is a building, etc. used as a place of human dwelling.
15. The question before the Court is whether the prosecution has been able to satisfy the aforesaid legal requirements beyond reasonable doubt or not, in order to prove its case.
16. I have heard the final arguments of both sides and also perused the evidence on record. In the instant case, PW1 is the Duty Officer and is a formal witness. PW2 and PW3 are the alleged eye witnesses of the incident. PW4 is the police constable who joined investigation along with PW5 who is the IO of this case. It is self evident that the prosecution is primarily relying on the testimony of PW2 and PW3 in order to prove its case.
17. As far as the first offence u/s 454 IPC is concerned, the court has arrived at the following findings:-
17.1. There is inherent consistency in the statement of both PW2 and PW3. PW3 is the first person who saw the accused coming out of her room and then raised an alarm of "Chor-chor" upon which PW2 came upstairs and saw the accused. PW2 has also narrated the same facts in his testimony. So, both the testimonies have got corroborated by each other. Nothing has come on record even after their cross-examination FIR No.137/99 State vs. Vicky Page No.6 of 15 which can prove that they have deposed falsely in this regard. Further it is an undisputed fact that the place of incident i.e. 81 C, Krishan Kunj, Laxmi Nagar, was in the possession of PW2 at the time of incident.
17.2. The defence has raised the contention that the testimony of PW2 is unreliable as PW2 also claimed himself to be the eye witness even though he was downstairs when his wife allegedly first saw the accused coming out of room. In this regard, it is worth observing that PW2 has not stated that he saw the accused coming out of room, instead he has stated that he saw the accused running away from the roof of the house when he reached upstairs. So, the statement of this witness is very much covered under "Res Gestae" as laid down u/s 6 of the Indian Evidence Act, 1872.
Besides it has also come on record from the testimony of DW2 that her aforesaid house (in which PW2 was residing as tenant) was adjacent to the house of one Gupta and even the roof of both the houses met at one point. So this might have facilitated the escape of accused. Even otherwise it is also pertinent to mention that both PW2 and PW3 were examined in court after about 9 years of the incident and further they were cross-examined on application u/s 311 Cr.P.C. after 12 years of the incident, so some minor discrepancy in their statement is all, but natural. In Jeet Pal v. State 1997 Cri.L.J. 299 (Delhi) it was held that when Witnesses deposed in court 5/6 years after the occurrence - Some discrepancies are bound to occur with lapse of time which rather gives stamp of genuineness instead of diminishing the worth of evidence.
17.3. Thirdly, as per statement of accused u/s 313 Cr.P.C., he has stated that he was on duty on the date and time of the alleged incident but he has not produced any evidence to show that he was on duty on the date and time of incident. The accused could have produced his Employee Attendance register of his place of work or he could have examined his employer or any co-employee in order to prove that he was on duty. As FIR No.137/99 State vs. Vicky Page No.7 of 15 per Illustration (g) of Sec 114 of The Indian Evidence Act, 1872 "The court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;" So in view of this provision, a presumption may reasonably be drawn that the information regarding his being on duty, if produced by the accused, would have been unfavourable to him. Further the statement of accused u/s 313 Cr.P.C. can also be not treated as an evidence. In "V S Yadav vs Reena 172 (2010) Delhi Law Times 561, was held by Hon'ble Delhi High Court that "It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr.P.C. or 313 Cr.P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful."
17.4. Even in the testimony of DW1, who is the father of the accused, there is contradiction on this point. DW1 in his examination-in-chief states that on the day of the alleged incident his son was on the roof in the morning after bathing for drying of clothes but in his cross-examination he states that his son was on the duty at the time of incident. One more point is also worth observing. DW1 has stated in his cross-examination that he had already left the house for his duty at about 8.30 AM and he was not present at home at the time of incident so, since the alleged incident has happened at 9.00 AM, it was not possible for DW1 to know whether the accused was at home at that time or had gone for duty. It appears that this witness is deposing falsely in order to save the accused.
FIR No.137/99 State vs. Vicky Page No.8 of 1518. The whole defence of the prosecution is built on the premise that the accused has been falsely implicated by PW2 as the accused was having friendship with the sister of the PW2. Even though for the sake of arguments it were to be presumed that the accused had friendship with complainant's sister, this fact alone does not prove that the accused may not have entered the house of the complainant on the date, time and place as alleged.
19. In view of the above findings, prosecution has sufficiently proved that the accused committed house trespass as laid u/s 442 IPC. However, the prosecution has not been able to prove that while committing house trespass the accused took precautions to conceal his presence as there is no evidence produced in this regard. In fact PW3 has herself stated that she saw the accused coming out of the room after she herself came out from the bathroom, so obviously there is no concealment of his presence, made by the accused.
20. As far as the question of committing house trespass for commission of some offence and thereby committing theft u/s 380 IPC in the house of PW2 by accused is concerned, I do not find the prosecution version trustworthy for the following reasons.
20.1. No recovery of any stolen money belonging to PW2 is effected from the accused.
20.2. Both PW1 and PW2 have stated that no other article was stolen from the room except Rs.12,000/- which is surprising as both witnesses have also deposed that all the other articles in the room were scattered by the accused and the almirah was also opened.
20.3. Further DW2 has denied any knowledge about commission of theft FIR No.137/99 State vs. Vicky Page No.9 of 15 by accused even though she is the owner of the house in which complainant resided at the time of incident.
20.4. PW2 and PW3 have stated that the accused was having Rs. 12,000/- in his hand when he came out of the room. However, no evidence has been produced regarding the source of the money. PW2 states that he gave the money to PW3 in the morning on the date of incident itself, so it is surprising as to how did it become possible for the accused to know that PW3 had received the money on the same day in the morning itself.
20.5. The IO has not placed on record even the photographs of the room or the almirah to show that any theft was committed from the almirah of the room. It is also pertinent to mention that the IO has mentioned in the chargesheet that since the complainant had scattered all the articles of the house, it was not possible even to collect finger prints of the spot.
21. In view of aforesaid findings, it is difficult to conclusively believe the prosecution version that the accused committed theft in the house as it is an established principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt and if there is any doubt, the benefit of the same goes to the accused.
22. The above observations reflects that the prosecution has been able to prove that accused committed house trespass, however, it has not been able to prove that the accused committed theft in the house. It may be possible that PW2 and PW3 might have deposed incorrectly regarding commission of theft by accused but it does not mean that they have also deposed falsely regarding the accused committing house trespass. At this stage, it is also worth mentioning here that the principle of "falsus in uno falsus in omnibus" is not recognized in India and it has been clearly laid FIR No.137/99 State vs. Vicky Page No.10 of 15 down by the Hon'ble Supreme Court that in India the witnesses who come to depose in court sometimes in order to aggravate the allegations, include some falsehood in their statement but that does not mean that their evidence can be discarded in toto. In Ugar Ahir & Ors. v. State of Bihar, AIR 1965 SC 277, the Hon'ble Supreme Court held as under:-
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations,embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
23. Again in Leela Ram v. State of Haryana, (1999) 9 SCC 525, the Hon'ble Supreme Court observed that "It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment -- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over-anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."
FIR No.137/99 State vs. Vicky Page No.11 of 15Accordingly I am of the considered opinion that the testimony of PW2 and PW3 taken as a whole is reliable as regards commission of House trespass by accused in concerned.
24. Lastly, as observed above, the charge had been framed against the accused for offence u/s 454/380 IPC, however, the allegations which are proved against the accused are only that of Section 442 IPC which is a minor offence as compared to Section 454 IPC. As per Sec 222(1) of Cr.P.C. :- "When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it."
25. So, in view of Section 222 of Cr.P.C. a person can be convicted for a minor offence even if charge has been framed against him for a graver offence provided ingredients of that minor offence is proved. The offence u/s sec 442 IPC is punishable u/s 448 IPC. Accordingly, accused Vicky stands acquitted from offences punishable u/s 380/454 IPC. He is, however convicted for the offence punishable u/s 448 IPC.
Ordered accordingly. Copy of the judgement be given to the convict free of cost. Case be relisted for arguments on the point of sentence for 29.01.2013.
Announced in open court on Dated: 23.01.2013 (A. K. AGRAWAL) MM(East)/KKD/23.01.2013 FIR No.137/99 State vs. Vicky Page No.12 of 15 IN THE COURT OF SH. A.K.AGRAWAL, MM-(East) KARKARDOOMA COURTS, DELHI FIR No. 137/1999 U/s 448 IPC PS: Shakarpur STATE Vs. Vicky 30.01.2013 Present: Ld. APP for the state.
Convict Vicky is present with counsel LAC Sh. Dinesh Yaduvanshi. Arguments on sentence have already been addressed from both sides. Previous conviction record of convict was called from the concerned PS, as per which there is no record of previous conviction of convict. The case has been fixed for orders on the point of Sentence for today.
ORDER ON SENTENCE
1. During arguments, on behalf of the state, it has been argued by state counsel that in view of conviction of convict, he be sentenced to maximum period of imprisonment as per law, so that it may act as a deterrent to other offenders.
2. On the other hand, it was argued on behalf of convict is a driver and he is facing trial in this case for more than 10 years and has already suffered sufficiently by having made to appear on each court date resulting in loss on earnings of the day.
3. It is further argued that the convict does not have any previous criminal record and is not required in any other case except the present case.
4. It is also argued that the convict is a married person and has a family to look after besides his old parents. It is stated that the family of the convict shall become destitute in the absence of convict, if he is sentenced to imprisonment.
5. Lastly, it is also argued that the convict was merely 18 ½ years of age at the time of commission of this offence, so considering the young age of the convict, he be given a opportunity to reform himself. So considering FIR No.137/99 State vs. Vicky Page No.13 of 15 the nature of offence proved against convict and also the above facts, a lenient view be taken against convict. It has been further prayed that the convict may be released on probation under Probation of Offenders Act.
6. I have heard submissions from both sides.
7. In Jashubha Bharatsinh Gohil v. State of Gujarat 1994 3SCR 471, it has been held by Hon'ble Supreme Court that in the matter of death sentence, the Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.
8. As regards appropriate sentencing is concerned, Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy, where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed the motive for commission of the crime, the conduct of the accused the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."
9. In the instant case, the convict has been convicted for offence u/s 448 IPC. The convict was a very young person at the time of commission of offence. He has been facing trial for more than 10 years. There is no criminal history of the convict as per the report filed from the concerned FIR No.137/99 State vs. Vicky Page No.14 of 15 PS. The convict appears to have settled down in his life. The offence proved is not a very serious offence. The convict, in my opinion deserves a chance to reform himself.
10.Considering the above facts and also the nature of offence and the punishment prescribed for it, I am of the opinion that a lenient view can be taken in this case as the object of punishment is reformation of offender. Accordingly, I give benefit to the convict under Section 4(1) of the Probation of Offenders Act and direct that the convict be released on bail on his entering into a bond in a sum of Rs. 10,000 and a surety in the like amount to appear and receive the sentence when called upon during a period of one year and in the meantime to keep the peace and be of good behaviour.
11. The convict's previous Bail bond stands cancelled and his surety is hereby discharged. Any original documents if impounded, be returned back to the rightful claimant, after cancelling endorsement made thereon.
Copy of this order be given free of cost to the convict. One copy be also sent to concerned Probation Officer.
Ordered Accordingly.
Announced in open court on Dated: 30.01.2013 (A. K. AGRAWAL) MM(East)/KKD/30.01.2013 FIR No.137/99 State vs. Vicky Page No.15 of 15