Delhi District Court
State vs 1. Noor Islam @ Gole on 13 July, 2012
State v. Noor Islam & Ors.
IN THE COURT OF SH. SANJAY SHARMA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH
EAST, SAKET COURT, NEW DELHI.
Case No. 161/2
Unique Case I.D. No.02406R0183682011
STATE VERSUS 1. NOOR ISLAM @ GOLE
2. MOHD BABUL
FIR No.117/11
U/s 380/457/411/34 IPC
P. S. New Friends Colony
Date of filing of the charge sheet: 19.07.2011
Date of reserving order : 03.07.2012
Date of pronouncement : 13.07.2012
JUDGEMENT
(a Serial Number of the case : 161/2
)
(b The date of the commission : 06.06.2011
) of the offence
(c The name of the : Sh. Mukesh Kumar S/o
) complainant Sh. Phool Singh R/o
H.No.75, Taimoor
Nagar, New Delhi.
n The name of the accused : 1. Noor Islam @ Gole person, his parentage and S/o Mohd. Abu Bakar residential address R/o H. No. 716, Pahari No.2, Taimoor Nagar, New Delhi.
2. Mohd. Babul S/o Mohd. Raja Ali R/o Jhuggi No.138, Pahari No.1, Taimoor Nagar, New Delhi.
(e The offence complained of : S. 380/457/411/34 IPC )
(f) The plea of the accused : Pleaded not guilty (g The final order : Convicted U/s 457/411/34 IPC Case No.161/2 Page No.1of 14 State v. Noor Islam & Ors.
) (h The date of the order : 13.07.2012 ) Prosecution case:
1. The case of the prosecution, in brief, is that the complainant (PW-1) was residing at H. No. 75, Taimoor Nagar, New Delhi. According to the complainant (PW-1), when he woke up in the morning at 08.00 AM he found lock of main gate of his house broken and one juicer machine, one iron garari and utensils including two bowls and one jug had been stolen from his room at 3rd floor of his house. On enquiry, he learnt that two persons had taken a bag towards hills in the darkness of early morning. He lodged a complaint Ex.PW-1/A regarding theft in his dwelling house. SI Sarvesh Kumar (PW-3) got FIR registered U/s 380/457/411/34 IPC at 09.20 AM on 06.06.2011 vide tehrir Ex.PW-3/A and proceeded to place of occurrence of offence. As a result, FIR No.117/11 U/s 380/ 457/411 IPC Ex.PW-2/A was registered at 09.25 AM and the investigation was marked to SI Sarvesh Kumar. Ct. Satish (PW3) handed over a copy of FIR and original tehrir to SI Sarvesh Kumar (PW3) at the place of occurrence of offence. During investigation, he prepared site plan of the place of occurrence Ex.PW-3/B. On receipt of secret information, SI Sarvesh Kumar (PW3) with the assistance of Ct. Satish (PW4) apprehended accused Noor Islam and Mohd. Babul and recovered stolen articles from bushes near pipeline of Taimoor Extension, New Delhi at their instance. The complainant identified stolen articles. SI Sarvesh Kumar (PW3) seized recovered articles vide Seizure Memo Ex.PW-1/B, recorded disclosure statement Ex.PW-3/C-D, statement of witnesses, arrested Case No.161/2 Page No.2of 14 State v. Noor Islam & Ors.
accused persons vide Ex.PW-1/C and E, Personal Search Memo Ex.PW-1/D and F and deposited case property in Malkhana. He filed charge sheet U/s 380/457/411/34 IPC.
2. The Court took cognizance of offence U/s 380/ 457/411/34 IPC. Both accused were supplied copy of charge sheet and other documents as provided u/s 207 Cr.P.C. On appraisal of material on record, the Court framed charge U/s 380/457/411/34 IPC against both accused to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution examined four witnesses namely the complainant (PW-1), DO ASI Adrina (PW-2), IO SI Sarvesh Kumar (PW-3) and Ct. Satish (PW-4).
4. In his examination U/s 281 of the CrPC. He alleged false implication and pleaded innocence. According to accused Noor Islam, he was not with accused Babul. He stated that two boys namely Ton and Pawah were with him. He stated that he was going to hospital for treatment of his daughter. He stated that when he had come out from his house, his mother in law demanded rupees for treatment of his daughter and he had given a sum of Rs. 1500/- to her mother in law. He stated that he was arrested by the police while he was going with Harun. He stated that he is involved in the commission of this offence. He stated that Harun called the police and got him arrested.
5. In his examination U/s 281 of the Cr. P.C., accused Mohd. Babul stated that it was around 5 AM. He was able to move since he had an injury over his leg. He stated that he had taken two minor children Ton and Pawah Case No.161/2 Page No.3of 14 State v. Noor Islam & Ors.
with him who had climbed over roof of the complainant house and stolen juicer machine, two iron garari used for making sugar-cane juice and other articles.
6. Accused Mohd. Babul further stated that he was standing outside house of the complainant. He stated that the said children had given him one bag containing stolen articles. He stated that in the meanwhile, police arrived pursuant to call made by the complainant and he was arrested on the spot. He stated that he could not move due injury over his leg. He stated that he was taken to police station. He stated that he had not broken handle or lock of the house of the complainant. He stated that the police had not detained the said children. He stated that the police involved Noor Islam in this case. He stated that accused Noor Islam has no concern with the theft at the house of the complainant. He stated that stolen articles were recovered from his possession.
7. I have heard Ld. APP for State and Sh. Vinay Kumar Verma, Advocate (LAC) for both accused and considered evidence on record.
8. PW-1 Sh. Mukesh Kumar is the complainant in this case. According to him, on 06.06.2011 when he woke up in the morning, he saw that lock of the main gate of his house was broken. He deposed that he searched the house and found that some articles namely Juice Machine, Badi Garari, some utensils like Bowls, Jug were missing from his room at third floor of his house. He deposed that two boys told him that two persons were going towards main road with goods in their hands. He deposed that he had gone to Case No.161/2 Page No.4of 14 State v. Noor Islam & Ors.
the police station and narrated the matter. He stated that IO recorded his statement Ex.PW-1/A. He deposed that he along with 2/3 police officials was searching stolen goods and thieves.
9. PW-1 Sh. Mukesh Kumar further deposed that during search, they reached near pipeline, Taimoor Nagar Extension. He stated that two persons were sitting inside bushes near pipeline and they had one plastic bag. He stated that during search of plastic bag, juice machine, one garari and some utensils were found. He stated that IO seized the said articles vide Seizure Memo Ex.PW-1/B. He stated that IO arrested both accused and carried out their personal search vide Arrest Memo Ex.PW-1/C to Ex.PW-1/F. He identified both accused before the Court. He proved his statement Ex.PW-1/A, Seizure Memo Ex.PW-1/B, Arrest Memo Ex.PW-1/C and E, Personal Search Memo Ex.PW-1/D and F.
10. In his cross-examination, PW-1 Sh. Mukesh Kumar stated that he reached at the police station at 08.30 AM. He stated that IO recorded his statement. He stated that at 09.00 AM, he returned to spot along with police officials. He stated that IO prepared the site plan at the spot. He stated that IO prepared Seizure Memo in the police station. He stated that IO prepared some documents at the spot and some documents in police station. He stated that he never visited police station after the date of incident. He stated that no other statement was recorded by IO. He stated that IO did not inform about arrest to the relatives of accused persons.
Case No.161/2 Page No.5of 1411. PW-2 ASI Adrina was Duty Officer. She recorded the case FIR No. 117/11 U/s 457/380/411/34 IPC at 09.25 AM on 06.10.2011 on receipt of ruqqa Ex.PW-3/A sent by SI Sarvesh Kumar (PW-3) through Ct. Satish. She proved case FIR Ex.PW-2/A and endorsement Ex.PW-2/B on ruqqa.
12. PW-3 SI Sarvesh Kumar is the Investigating Officer (IO) in this case. He was posted as SI at police station New Friends Colony. According to him, on 06.06.2011 the complainant came to the police station and he made a complaint. He made an endorsement Ex.PW-3/A on the complaint Ex.PW-1/A and got the case registered. He along with the complainant reached at the house of the complainant and prepared Site Plan Ex.PW-3/B at the instance of the complainant. He received secret information that two persons were going towards Taimoor Nagar Extension with stolen property in a plastic bag. He deposed that in the meantime, Ct. Satish (PW-4) reached at the spot and joined investigation. He along with the complainant, Ct. Satish (PW-4) and secret informer reached at Taimoor Nagar Extension where two persons were found with one plastic bag. He deposed that he opened the plastic bag containing one juice grinder, one iron garari, two silver bowls and one cup. He deposed that he recorded Disclosure Statements Ex.PW-3/C and D of accused persons. He seized the said articles vide Seizure Memo Ex.PW1/B. He arrested accused persons and conducted their personal search vide Ex.PW-1/D to Ex.PW-1/F. He identified both accused. He had given information about arrest of accused persons to their relatives. He returned to the spot and prepared pointing out memo Ex.PW-3/E at the instance of accused persons. He Case No.161/2 Page No.6of 14 State v. Noor Islam & Ors.
deposited the case property in Malkhana. He recorded supplementary statement of the complainant. He recorded statement of witnesses and submitted the challan. Ld. Defence Counsel did not dispute identity of the case property. The case property is Ex.P-1.
13. In his cross-examination, PW-3 SI Sarvesh Kumar stated that the complainant had come to police station at about 08.30 AM. He stated that the place of recovery and arrest of accused persons was a public place. He stated that he reached at the house of the complainant at 09.25 AM. He stated that they reached at the place of recovery at 07.30 PM on foot. He stated that he never called the complainant to police station after arrest of accused persons. He they left the spot at 08.30 PM.
14. PW-4 Ct. Satish was posted as Constable at police station New Friends Colony. PW-2 ASI Adrina handed him over a copy of FIR and original tehrir for delivering them to SI Sarvesh Kumar at H. No. 75, Taimoor Nagar, New Delhi. He reached at the complainant's house where he handed over copy of FIR and original tehrir to SI Sarvesh Kumar. He along with IO and complainant while searching accused reached at Honey Money, Taimoor Nagar where secret informer met them and given information regarding accused persons. He deposed that IO requested 4/5 persons to join investigation but they proceeded on their way without disclosing their names and addresses. He deposed that secret informer informed about presence of accused persons near pipeline, Taimur Nagar Extension. They apprehended accused persons in the bushes near pipeline Case No.161/2 Page No.7of 14 State v. Noor Islam & Ors.
of Taimoor Nagar Extn. with stolen articles i.e. one juicer grinder, one iron garari, oen cup, two bowls belonging to the complainant. He identified accused persons before the Court. He proved Seizure Memo Ex.PW-1/B, Arrest Memo, Personal Search Memo vide Ex.PW-1/C-F, Disclosure Statements Ex.PW-3/C and D, Pointing out Memo Ex.PW-3/E and Site Plan of place of recovery Ex.PW-3/C.
15. PW-5 HC Subash Chand MHC (M) deposed that 06.06.2011, SI Sarvesh Kumar (IO) handed him over the case property i.e. one Juice Grinder, one Iron Garari, two Bowls and one Jug in a plastic bag. He deposed that the said articles were deposited in Malkhana vide Serial No. 2680 in the Register No. 19 and a copy thereof is Ex.PW-5/A.
16. Ld. APP argued that the prosecution has been able to prove that the accused persons committed house breaking at night by breaking open handle of main gate of the complainant house and stolen one juicer, one iron garari, two bowls and one jug from room at 3rd floor of the complainant's house. He argued that the stolen property was recovered from possession of accused persons. He argued that there is no contradiction in the testimony of the complainant (PW-1), IO SI Sarvesh Kumar (PW-3) and Ct. Satish (PW4). He argued that the depositions of the PW-1 are duly corroborated by FIR Ex.PW-2/A. He argued that accused persons are liable to be held guilty for committing offence U/s 380/457/ 411/34 IPC.
17. Diametrically opposite, Ld. Defence Counsel argued that there is no public witness to recovery of stolen property from the possession of accused persons. He Case No.161/2 Page No.8of 14 State v. Noor Islam & Ors.
argued that IO made no attempt to join any public witness to recovery proceedings. He argued that He argued that possibility of false plantation of the case property cannot be ruled out. He argued that there are material contradictions in depositions of the prosecution witnesses. He argued that documents were prepared in police station. He argued that the prosecution case is shrouded with suspicion and hence, the accused persons are entitled to be acquitted in this case.
18. Offence of theft is defined in Section 378, IPC which is reproduced as under:
378. Theft. - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
19. The offence of theft consists in the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it the offence of theft is not complete. It is however an essential ingredient of the offence of "theft" that the movable property which was the subject matter of the theft should have been "moved" out of the possession of any person without his consent. As is obvious, that could be possible only if the person moving the property had taken it out of the possession of the person concerned and transferred it to this own possession in order to move it for the purpose of taking it dishonestly. It follows that transfer of possession of Case No.161/2 Page No.9of 14 State v. Noor Islam & Ors.
the property, however transient, is an essential ingredient of an offence of theft.
20. Section 380 defines theft in a dwelling house, etc. as under:
Theft in dwelling house, etc. _ 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.
21. Whereas Section 379 provides for punishment of theft in general, and this section deals with theft committed in any building, tent or vessel etc. The offence under this section is an aggravated form of offence of theft in the case of theft of property is committed in a building, tent or vessel. The object of this section is to give greater security to property kept in a house, tent or vessel.
22. Section 457 provides punishment for lurking house tress-pass or house breaking by night in order to commit offence punishable with imprisonment, which is as under:
457. 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.Case No.161/2 Page No.10of 14
23. Section 445 IPC provides that a person is said to commit "house-breaking" who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways. If a person enters or quits by breaking open locks, or by unfastening entrance or exit is said to have committed house-breaking. Illustration (d) states that unfastening of a door is a house-breaking. Fasten Illustration
(e) states that lifting of latches is a house-breaking.
24. Whoever commits house-breaking after sunset and before sunrise, is said to commit, "house-breaking by night".
25. I have carefully considered and analyzed evidence on record.
26. The prosecution has examined the complainant (PW-1) in support of its case. He is material witness. He is natural witness. He has no animosity against accused persons. The PW-1 is a trustworthy witness. The defence has failed to elicit any material contradiction in his depositions.
27. In his depositions, the complainant has proved theft in his dwelling house by house-breaking by breaking latches of the main gate of his house at night. He deposed that on 06.06.2011 when he woke up in the morning, he saw that the main gate lock of his house was broken and some articles i.e. juice machine, badi garari and some utensils were missing from his room at third floor. His depositions are corroborated by his statement Ex.PW-1/A wherein he has given description of stolen articles namely juicer, iron garari and some utensils including bowls and jug.
Case No.161/2 Page No.11of 1428. The complainant has proved recovery of stolen articles from the possession of accused persons. He promptly lodged the complaint Ex.PW-1/A with the police at 08.30 AM on 06.06.2011. The case FIR Ex.PW-2/A was registered at 09.25 AM on 06.06.2011 and investigation was marked to SI Sarvesh Kumar. The complainant has deposed that during search, when they reached near pipeline at Taimoor Nagar Extension, the accused persons were sitting inside bushes near pipeline and stolen articles namely juice machine, one garari and some utensils were found. The complainant has proved Seizure Memo Ex.PW-1/B.
29. SI Sarvesh Kumar (PW-3) and Ct. Satish (PW4) deposed on similar lines. According to SI Sarvesh Kumar (PW3), he along with the complainant (PW-1) and Ct. Satish (PW4) reached at Taimoor Nagar Extension where accused persons were apprehended with a plastic bag containing stolen articles namely one juice grinder, one iron garari, two bowls and one cup. According to Ct. Satish (PW4), accused persons were apprehended with stolen articles i.e. one juicer grinder, one iron garari, two silver bowls and one cup behind bushes near pipeline Taimoor Nagar Extension.
30. Accused Mohd. Babu in his examination U/s 281 of the Cr.P.C. has admitted that at 05.00 AM, he had taken two minor children with him who had climbed over roof of the complainant's house and stolen juicer machine, two iron garari and other articles. He admitted that he was standing outside the house of the complainant and further, the said minor children had given bag containing stolen articles. He admitted that the police had arrested him on the spot.
Case No.161/2 Page No.12of 14Moreover, plea taken by accused Noor Islam is a false plea. Firstly, he stated that he had taken his daughter for treatment and thereafter, he stated that his mother in law demanded money for treatment and then he started roaming with his friend Harun. It is true that admission of an accused and a false statement cannot form basis of conviction but it can provide an additional link.
31. No exception can be taken for non-joining of a public witness at the time of recovery proceedings. the complainant is a public person. He is not a police official. He has no reason to frame accused persons in this case.
32. The defence has neither suggested nor demonstrated any plausible reason for deposing him against accused persons.
33. In view of clear and cogent evidence of the complainant, the defence cannot derive benefit by contending that seizure memo was prepared in police station and the complainant has denied that his supplementary statement was recorded by the police.
34. From the testimony of the complainant (PW-1), it is therefore, proved beyond reasonable doubt that accused Mohd. Babul and Noor Islam in furtherance of their common intention committed theft at dwelling house of the complainant by house breaking at night and further, the stolen articles were recovered from their possession.
35. Accordingly, accused Noor Islam and Mohd. Babul are hereby held guilty for committing offence U/s 457 and 411/34 of the Indian Penal Code.
Case No.161/2 Page No.13of 1436. A copy of judgment be given to accused Noor Islam and Mohd. Babul free of cost.
Announced in the open Court on 13.07.2012 (SANJAY SHARMA) ACMM - 01/SE, SAKET COURTS, NEW DELHI.
Case No.161/2 Page No.14of 14