Delhi District Court
State vs . Rajesh Kumar @ Kalu on 18 October, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. RAJESH KUMAR @ KALU
FIR No. 107/17
U/s : 457/380/511 IPC
P.S. : Malviya Nagar
Date of Institution : 08.08.2017
Date on which case reserved for Judgment : 28.09.2018
Date of judgment : 18.10.2018
JUDGMENT
1.FIR No. of the case : 107/17
2.Date of the Commission : 16.03.2017
of the offence
3.Name of the accused : Rajesh Kumar@ Kalu,
: S/o Sh. Joginder,
: R/o H. No. 62, Khirki Extension,
: Malviya Nagar, New Delhi.
4.Name of the complainant: Sh. Arjun Doda,
: S/o Sh. Jagdish Kumar,
: R/o J4/95, 2nd floor,
: left side, Malviya Nagar,
: New Delhi.
5.Offence complained of : U/s 457/380/511 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Accused convicted for the offence U/s
: 456 IPC and acquitted for the
: offences U/s 457/380/511 IPC.
FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 1/8
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 16.03.2017 at about 01:55 am at J 4/19, 2nd floor, Khirki Extension, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Rajesh Kumar@ Kalu broke open the locks of the door of the house of the complainant Sh. Arjun and entered into his room in order to commit offence punishable with imprisonment and committed house breaking by night and thus the accused committed the offence punishable U/s 457 IPC. It is further alleged that on said date, time and place, accused entered into the room of the aforesaid premises of the complainant and attempted to commit theft therein and thus the accused also committed the offences punishable U/s 380/511 IPC.
2. FIR No. 107/17 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 457/380/511 IPC was filed before the court on 08.08.2017.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 457/380/511 IPC was framed against the accused Rajesh Kumar@Kalu to which the accused pleaded not guilty and claimed trial on 26.04.2018.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined three witnesses.
a) PW1 was the complainant Sh. Arjun who deposed about the incident. He exhibited the arrest memo of accused as Ex. PW1/B.
b) PW2 was the Investigating Officer (IO) of the case ASI Ram Lal. He exhibited the rukka as Ex. PW2/A and site plan as Ex. PW2/B. FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 2/8
c) PW3 was Ct. Murlidhar who accompanied the IO to the spot. He exhibited the disclosure statement of accused as Ex. PW3/A.
d) Accused admitted the factum of registration of FIR in the present case U/s 294 Cr.P.C. on 27.07.2018 and the FIR was exhibited as Ex. X1.
6. Prosecution evidence was closed on 31.08.2018. After conclusion of prosecution evidence, the statement of accused Rajesh Kumar @ Kalu (SA) under section 313 r/w section 281 Cr.P.C was recorded on 11.09.2018. Accused sought to lead defence evidence.
7. Accused examined Ms. Pooja as DW1 who was cross examined by Ld. APP for the State. Defence evidence was closed on 17.09.2018.
FINAL ARGUMENTS:
8. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused. I have heard the arguments and perused the record.
REASONS FOR DECISION:
9. The prosecution's main witness is PW1 Sh. Arjun the complainant. PW1 Sh. Arjun proved his complaint/statement to the police as Ex. PW1/A. He narrated the incident deposing that in the intervening night of 16.03.2017 - 17.03.2017 at about 02:00 am, he was sleeping in the lobby of his house and he heard a noise of opening of the main door and saw the accused coming down from the stairs. He testified that he woke his friend Ankit Pandey up and they both came down the stairs, chased the accused and apprehended him in a garage in the nearby street. PW1/complainant deposed that he called 100 number and the IO came to the spot and took a cursory search of the accused but no stolen article was recovered from the possession of the accused. The complainant/PW1 duly identified the accused during trial. PW1 thus fully supported the prosecution's case.
FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 3/8
10. In the crossexamination of PW1/complainant nothing favourable to the defence of the accused could be elicited except that the complainant/PW1 testified that he had apprehended the accused on the basis of suspicion and had told the IO to leave the accused. Ld. APP for the State argued and rightly so, that this was good reason for the complainant/PW1 to doubt the accused as he had woken up after hearing the noise of opening of the main door and had seen the accused inside his house. Even if the complainant/PW1 did not actually see the accused committing or attempting to commit theft, he would naturally be startled to see a total stranger having entered inside his house surreptitiously in the dead of night.
11. No reason or motive for false implication of the accused by the complainant/PW1 could be brought out by the accused during trial. PW1/complainant denied the suggestion that the present case was false and fabricated or that the IO had falsely implicated the accused in the present case.
12. The police witness PW3 Ct. Murlidhar corroborated the complainant's version, deposing that on receipt of DD No. 6A i.e. Ex. PW2/C regarding apprehending of thief, he alongwith the IO went to spot i.e. J4/19, 3rd floor Khirki Extension where he saw the net of the door in broken condition. PW3 Ct. Murlidhar testified that they met the complainant Arjun there and at that time the complainant had apprehended the accused.
13. In crossexamination PW3 Ct Murlidhar testified that the family members of the complainant were also present and the IO interrogated them but he did not know whether the IO had recorded their statements. Now, the complainant/PW1 Sh. Arjun had deposed that he and his friend Ankit Pandey had apprehended the accused but neither Ankit Pandey nor any family member of the complainant has been joined to the investigation proceedings however that is squarely the fault of the IO and the settled law is that evidence is to be weighed not FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 4/8 counted. Further it has been held by Hon'ble Supreme Court in State of Karnataka Vs. K.Yarappa Reddy 1999(4) Crimes 171 (SC) that defect and irregularities in the investigation cannot be a ground of acquittal. The testimony of PW1/complainant is credible and inspires confidence and is substantiated by the testimonies of PW2 ASI Ramlal and PW3 Ct. Murlidhar so merely because the IO failed to join other public witnesses it is not a ground to discard the prosecution's case.
14. PW3 Ct. Murlidhar denied the suggestion that the IO had falsely implicated the accused at the instance of the complainant. The accused did not seem to be clear about his defence as to whether it was that he had been falsely implicated at the instance of the IO (as per the suggestion put to the complainant/PW1 in cross examination) or whether it was that he had been falsely implicated at the instance of the complainant (as per the suggestion put to PW3 Ct. Murlidhar).
15. PW2 ASI Ram Lal also deposed during trial about going to the spot after receiving DD No.6A and seeing the net of the main door in broken condition. He testified that he met the complainant Arjun Dhoda who had already apprehended the thief. In crossexamination it came out that he had not recovered any tool for cutting the net at the spot however the nonrecovery of such a tool does not prove fatal to the prosecution's case in light of the clear and cogent eye witness account of the complainant/PW1, who testified about hearing the noise of opening of the main door and waking up to see the accused coming down the stairs. It is evident that the accused cut the net, opened the door and effected his entry into the premises of the complainant thus committing house breaking.
16. Accused for the first time in SA took the plea that he had gone to pick up his sister from Begumpur and while passing by the locality where the house of the complainant was situated as it fell in the route, the complainant called out to him FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 5/8 from his house and the accused stopped and the complainant sent away his sister and then apprehended the accused and in the meantime the police officials came.
17. The accused examined his sister Ms. Pooja as DW1 who deposed that on the date alleged, she had gone to the residence of her friend in the evening and had called her father as it was late in the night. DW1 Ms. Pooja further deposed that her brother i.e. the accused was sent by her father to pick her up and at about 12 midnight 12:30 am she left alongwith her brother. DW1 testified that on the way her brother was walking a little ahead of her and somebody called out from a building, 23 persons came down and started talking to her brother and told her to leave as they wanted to talk to her brother and she left from there. DW1 deposed that on reaching home she told her father about the incident. When crossexamined by Ld. APP for the State DW1 Ms. Pooja deposed that she told the incident to her father. Interestingly, DW1 Ms. Pooja testified further in crossexamination that her father went to those persons and came home at about 01:00 am and her brother did not come home deposing further that she asked her father about the accused but he did not tell her anything.
18. First of all, the entire defence of the accused appears to be sham and an afterthought as this defence was never taken earlier by the accused and no question or suggestion to this effect, and in furtherance of such a defence, was ever put by the accused to any of the prosecution's witnesses.
19. Secondly, according to the version of the accused it was only the complainant who had called out to him and apprehended him whereas according to DW1 Ms. Pooja there were 23 persons who had come down from the building. There was no explanation offered by the accused for this material contradiction in the version of the accused and DW1 Ms. Pooja.
20. Thirdly, if as per the version of DW1 Ms. Pooja, her father had gone FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 6/8 to check on the accused then why did he return home without the accused? If the accused had been wrongly apprehended by the complainant/PW1 then why did the father of the accused or the accused not file any complaint against the complainant? The accused did not even seek to examine his father as a defence witness. These questions have remained unanswered and the defence of the accused does not add up. It seems that DW1 Ms. Pooja deposed in defence evidence merely in order to attempt to save the skin of the accused who is her brother and she is a partisan witness. The testimony of DW1 is accordingly discarded as it is clearly motivated and absurd.
21. In fact from the plea of the accused certain facts are established in favour of the prosecution's version viz, the presence of the accused and the complainant in front of the house of the complainant, the apprehension of the accused by the complainant and the arrival of the police officials at the spot. The accused could not satisfactorily account for his having entered into the house of the complainant/PW1 during the early morning hours before sunrise.
22. The prosecution has successfully established through the testimonies of the complainant/PW1 and the police witnesses PW2/IO and PW3 Ct Murlidhar that the accused committed house breaking by night. Agreed that the complainant/PW1 deposed in crossexamination that he had told the IO to let the accused go scot free however the complainant's lenient attitude does not absolve the accused of the offence committed by him.
23. The offence punishable U/s 456 IPC stands duly proved against the accused. However, the complainant/PW1 did not depose about seeing the accused attempting to commit theft of any article nor is there any other eye witness of the alleged offence of attempt of theft in the dwelling house cited by the prosecution. So there is no sufficient material on record to hold the accused guilty of the offence FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 7/8 punishable U/s 380/511 IPC and consequently also not for the offence punishable U/s 457 IPC.
24. It is settled law that if charge is framed against the accused for graver offences and if commission of a lesser offence is proved against the accused even if charge for the same was not framed then the accused can be convicted for the lesser offence. The offence U/s 456 IPC is a lesser offence compared to the offence U/s 457 IPC. Hence the accused can well be convicted for the offence proved against him i.e. 456 IPC.
25. In view of the foregoing discussion the accused Rajesh Kumar @ Kalu is convicted for the offence U/s 456 IPC and is acquitted for the offences punishable U/s 457/380/511 IPC.
26. Put up for arguments on sentence on 30.10.2018.
Announced in the Court (ANJANI MAHAJAN) on 18.10.2018 MM02(SD)/18.10.2018
Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.10.18
17:17:11 +0530
(ANJANI MAHAJAN)
MM02(SD)/18.10.2018
FIR No. 107/17 State Vs. Rajesh Kumar @ Kalu 8/8