Delhi District Court
State vs . Kamal on 17 October, 2016
FIR No. 906/2014
P.S.: Ranhola
U/s: 457/380/511 IPC
IN THE COURT OF SH. JITENDRA SINGH : METROPOLITAN
MAGISTRATE, WEST DISTRICT, TIS HAZARI COURTS DELHI.
JUDGMENT
FIR No. 906/2014
PS: Ranhola U/s. 457/380/511 IPC Case ID No. 02001R0544122015 Dated: 17.10.2016 STATE VS. KAMAL Date of Institution : 13.02.2015 Date of Commission of offence : 20.11.2014 Name of the Complainant : Sh. Raju S/o Sh. Shiv Nath.
Name parentage and address
of the accused : Kamal S/o Sh. Shiv
Nath, R/o; Jhuggi No.
W-7/367, T-Huts, Indra
Camp-II, Vikas Puri,
Delhi.
Offence Complaint of : U/s. 457/380/511 IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Judgment reserved on : 17.10.2016
Date of judgment : 17.10.2016
Page 1 of 6
FIR No. 906/2014
P.S.: Ranhola
U/s: 457/380/511 IPC
BRIEF FACTS
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 906/2014. The case of the prosecution is that on 20.11.2014, at about 1.20 am, at H.No. A-14-B, Shiv Vihar, Lanka Colony, Vikas Nagar, Delhi, within the jurisdiction of PS Ranhola, allegedly accused committed house breaking by night in order to commit theft in the premises of the complainant Sh. Raju and also attempted theft of Exhaust fan of split of A/C from the roof of the complainant And thereby committed an offence punishable under Section 457/380/511 IPC. On the complaint of the complainant the present FIR was registered.
2. On conclusion of the investigation a charge sheet was filed against the accused. After necessary compliances a charge was framed against the accused U/s. 457/380/511 IPC, to which accused pleaded not guilty and claimed trial.
PROSECIUTION EVIDENCE
3. To bring home the guilt against the accused, the prosecution examined only one witness in the instant case. The prosecution has examined eye witness i.e. Sh. Rjau as PW-1, who had turned hostile on the point of identification of the accused. The remaining witnesses were formal in nature being the police witnesses, therefore prosecution evidence was closed.
STATEMENT U/S 313 OF CR.P.C
4. Statement of accused U/s. 313 Cr.PC. has been recorded separately, in which the accused did not lead his defence evidence. Final arguments have been heard and record has been meticulously perused.
5. During the course of arguments, Ld. Defence Counsel has Page 2 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC submitted that the witness, who has been examined by the Prosecution is not sufficient to convict the accused. It is further submitted that the Sh. Raju (PW-1), has already turned hostile on the point of identification and remaining witnesses are formal in nature being the police witnesses, therefore the accused is entitled to be acquitted in the instant case.
INGRIDIENTS OF SECTION
6. For proving the offence U/s. 457/380/511 IPC, the prosecution is required to prove the following:-
(a) that the accused committed lurking house-trespass by night, or house breaking by night;
(b) that the same was committed to commit theft, or an offence punishable with imprisonment.
(c) that the property in question is movable property;
(d) that such property was in the possession of a person;
(e) that the accused moved such property whilst in the possession of that person;
(f) that he did so without the consent of that person;
(g) that he so in order to take the same out of the possession of that person;
(h) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(I) that property was at he time of the theft in a building, tent or vessel.
(j) that such building, tent or vessel, was then being used as a human dwelling or for the custody of property.
(k) that the accused attempted to commit some offence punishable with imprisonment under the Indian Penal Code, or that he attempted to cause such offence to be committed;
(l) that in such attempt he did some act towards the commission of that offence.
APPRECIATION OF EVIDENCE
7. It is pertinent to mention here that the star witness of the Prosecution in the instant case Sh. Raju (PW-1), is also projected as eye witness to the alleged incident. PW-1 has turned hostile on the point of identification of the accused. The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below for ready reference:-
"....even in a criminal prosecution when a witness is Page 3 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
8. Now coming back to the facts of the instant case, the eye witness Sh. Raju (PW-1), who is the victim and only eye witness to the incident had turned hostile. The relevant extract of the examination in chief are reproduced below for ready reference:-
" PW-1: I reside at the abovesaid address for the last 5/6 years. I do not remember anything in this case. I do not know the accused present in the court today. At this stage, Ld. APP for the State seeks permission to cross examine the said witness as he is not resiling his previous statement recorded under section 161 of Cr.P.C.
XXX by Ld. APP for the State.
At this stage, The statement of the witness recorded under Section 161 of Cr.P.C. which is Mark A-1 from point B-1 to B-2 is read over to him upon which the witness denied the fact that he was the eye witness of the present case. The witness also denied the statement. At this stage, the accused person present in the court today is shown to the witnesses for identification purposes. The witness did not identify him as accused. It is wrong to suggest that I was eye witness of the present case and I had seen the incident wherein the accused was trying to commit theft of parts of the split air conditioner kept on the roof of the house of my neighbour. It is wrong to suggest that I had called on 100 number. It is wrong to suggest that I had apprehended the accused and handed him over to the IO. It is wrong to suggest that iron rod and screwdriver were recovered from the Page 4 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC possession of the accused. It is wrong to suggest that the site plan was prepared in my presence. It is wrong to suggest that the complaint has been made to the police on my behalf. I cannot deny or accept my signature present on the documents Ex, PW1/A, PW1/B, PW1/C, which is at point A. Vol. Police officials usually take the signatures of the residence, whenever any incident occurred in the locality. I do not remember when and where my signature was taken by the police. It is wrong to suggest that I am deliberately not identifying my signature correctly. It is wrong to suggest that I am deliberately not disclosed the true fact of the case. It is wrong to suggest that I am deliberately not identifying the accused in the court as I have been won over by him. It is wrong to suggest that I am deliberately not disclosing the identity of the said weapon of offence. It is wrong to suggest that I am deposing falsely.
At this stage, MHCM had produced one illegible seal cloth pullinda having one iron rod and one screw driver. The same are shown to the witnesses, who stated that the he cannot identify the same as it was not recovered in his presence. The same are Ex. P-1 and P-2.
The said witness has not supported the case of the prosecution and have turned hostile....".
9. The PW-1 has failed to identify the accused in the court, which create serious doubt to the story of the prosecution. It is a settled preposition that the accused cannot be convict in the case, where the eye witness has failed to identify the accused.
CONCLUSION
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
11. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing Page 5 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC reasons, accused is entitled to acquittal. Accused is therefore acquitted.
Announced in the open court (JITENDRA SINGH) today itself i.e. 17.10.2016 METROPLITAN MAGISTRATE TIS HAZARI COURTS/DELHI Page 6 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC Page 7 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC Page 8 of 6 FIR No. 906/2014 P.S.: Ranhola U/s: 457/380/511 IPC Page 9 of 6