Delhi District Court
State vs Arjun Kumar on 31 May, 2024
IN THE COURT OF SH. ANUJ KUMAR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT020016212014
FIR No. 122/2014
PS: Gulabi Bagh
State Vs. Arjun Kumar
U/s: 457/380/511 IPC
JUDGEMENT
(a) CIS No. 291162/2016
(b) Date of offence 04.08.2014
(c) Complainant Surender Singh
(d) Accused Arjun Kumar S/o Sh. Murli
Chauhan, R/o H. No. 497, Nai
Basti Kishan Ganj, Delhi.
(e) Offence U/s 457/380/511 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Convicted
(h) Date of Institution 05.01.2015
(i) Date when judgment was 31.05.2024
reserved
(j) Date of judgment 31.05.2024
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment the accused is being convicted of the offence punishable under Section 457/380/511 IPC in this case FIR No. 122/2014 Police Station Gulabi Bagh for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 1 of 20 the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr. P.C.') is that on 04.08.2014 at about 04:00AM, at J-53, 1 st Floor, Khema Katra, Kishan Ganj, Delhi within the jurisdiction of P.S. Gulabi Bagh, accused Arjun Kumar committed offence of lurking house trespass/hour breaking by night by entering in the aforesaid house by taking precaution to conceal such trespass, for the purpose of committing theft and attempted to commit theft by making attempt to remove from the pocket of complainant from his dwelling house without his consent and thereby tried for an offence punishable U/s 457/380/511 IPC Indian Penal Code (IPC).
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed and the accused was consequently summoned.
4. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr. P.C. CHARGE FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 2 of 20
5. Vide order dated 20.08.2015 passed by the learned predecessor of this Court, charge for the offence punishable under Section 457/380/511 of the Indian Penal Code was framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. To prove its case, the prosecution in all examined Seven witnesses:-
7. PW-1/Surender Singh deposed that on 04.08.2014, he was present in his house. At about 04:00am, he got up to urinate and when he was again going to bed he heard some noise and saw accused in his room. He correctly identified accused in the court. He raised alarm and in the meantime his son came in his vehicle and after hearing his voice started chasing accused. Accused while running got tangled in the grill. They apprehended accused but the accused managed to throw his phone away but the money was recovered from accused. In the meantime, police officials who were on patrolling came and they handed over the accused to the police. IO came on the spot and recorded his statement Ex. PW1/A bearing his signature at point A. He arrested accused vide memo Ex. PW1/B, personal search FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 3 of 20 of accused was conducted vide memo Ex. PW1/C and disclosure statement of accused is Ex. PW1/D, all bearing his signatures at point A. IO recorded his supplementary statement.
During his cross examination, he deposed that he used to ply oxcart. There is boundary outside his house but it is low and the same is open but the gate is affixed to enter the house. He sleep after closing the gate and latching the latch. At that time of incident, the gate was open as he got up to urinate. It is correct that he had not seen the accused entering the house. He volunteered that he had seen him in his room while stealing from his shirt. At the time of incident, his wife and his younger son were also present in the home. The name of his younger son is Mohan. His wife and his son Mohan used to sleep in a room and he used to sleep in front room. His son and his wife also chased the accused after he started chasing the accused. IO had not recorded the statement of his wife and his younger son Mohan. It is correct that IO recorded his statement at the spot which is already Ex. PW1/A. IO also recorded his supplementary statement. He knew the father of accused as he used to work as labourer. He did not know the accused prior to the incident. When he raised alarm, neighbourers also gathered namely Golu FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 4 of 20 who had apprehended the accused. However, he did not remember the name of other person. The accused stole mobile phones as well as Rs. 2260/- approximate. He did not know whether IO prepared the seizure memo of the mobile phone and of money. He denied the suggestion that he had seen the accused for the first time in the police station. He denied the suggestion that no such incident had taken place. IO prepared documents at the PS and he had signed the same. He did not know the time when the accused was arrested. Accused was apprehended at about 04:05am. He did not know the name of official who arrested the accused. No statement of accused was recorded in his presence. He signed his statement given to the police. He did not write any statement in his own handwriting. His son also did not give any statement in his handwriting. He did not know if the statement of his son was recorded by the police. Golu had also gone to the police station with them. He did not know whether the statement of Golu was recorded by the police. No transaction was there between him and father of accused. There was no enmity between him and father of accused. He denied the suggestion that there was enmity between him and father of accused and that's why accused has been falsely implicated in the present case. He denied the suggestion that he deposed FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 5 of 20 falsely.
8. PW-2/Ct. Ram Niwas deposed that on 03.08.2014, he alongwith IO were on patrolling duty vide DD No. 29PP. When they reached near Road No. 40, Metro Pillar No. 111, they met with Surender Singh and his son Suraj who handed over accused to IO. He correctly identified accused in the court. Complainant told the IO that he was sleeping in his house and at about 04:00am, he heard noises and he got up and he saw a person was stealing from the cloths hanging in his room. He further said that he shouted "Chor-Chor" and in the meantime said person started running. In the meantime, his son Suraj came with his car and started chasing the accused. While running accused tangled in an iron grill and he sustained injuries on his face and right hand fingers. The said boy again started running and son of complainant again chased accused but accused pushed a scooter in front of son of complainant. However, they managed to apprehend the accused. IO recorded statement of complainant and prepared rukka and handed over the same to him for registration of FIR. After some time, he returned to spot alongwith original rukka and copy of FIR and handed over the FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 6 of 20 same to IO. IO arrested accused vide arrest memo already Ex. PW1/B, personal search was conducted vide memo Ex. PW1/C and disclosure statement is Ex. PW1/D all bearing his signature at point B. Thereafter, accused pointed out towards the spot and IO prepared pointing out memo which is Ex. PW2/A bearing his signature at point A. Thereafter, they returned to PS and accused was put behind bars after his medical examination. IO recorded his statement.
During his cross examination, he deposed that they reached the spot at about 04:00-04:30am. On the spot, they met with complainant, complainant's son and accused. The recovery was effected in his presence i.e. Rs. 2352/- in cash and one phone black colour on which K-700 AG Tell was written. He did not remember the denomination of said currency. He denied the suggestion that injuries were inflicted to accused by police officials and complainant. He took rukka at about 05:30am and returned to the spot at about 06:20am. Accused was arrested at about 07:10am. No other public person was present at the spot except complainant and son of complainant. He denied the suggestion that accused has been falsely implicated in the present case. He denied the suggestion that he deposed falsely. FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 7 of 20
9. PW-3/ASI Babu Lal deposed that on 04.08.2014, he was posted as Duty Officer at PS Gulabi Bagh and his duty hours were from 05:00am to 08:00am. At about 05:40am, a rukka was received by him through Ct. Ram Niwas sent by HC Rajender for getting the case registered. On the basis of rukka, he registered the case vide FIR No. 122/14 which is Ex. PW3/A bearing his signature at point A. The copy of FIR alongwith original rukka was handed over to Ct. Ram Niwas to hand over the same to HC Rajender for further investigation. He also made endorsement on original rukka which is Ex. PW3/B bearing his signature at point A vide DD No. 11A. The certificate u/s 65B of Indian Evidence Act qua the FIR is Ex. PW3/C bearing his signature at point A. During his cross examination, he deposed that he remained duty officer many times prior to lodging of this FIR. No complainant met him. It took him about 25 minutes to record the FIR.
10. PW-4/HC Hemant deposed that on 03.08.2014, he was posted as DD writer from 08:00pm to 08:00am. On that day, at about 11:57pm, he made departure entry of HC Rajender and Ct. Ram Niwas vide DD No. 29PP which is Ex. PW4/A. FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 8 of 20
11. PW-5/Suraj deposed that on 03.08.2014 at about 11:00pm, he went with his vehicle and was returning in the early morning of 04.08.2014 at about 04:00am when he reached his home he heard noises "Chor-Chor". He saw one person running who passed him and he also started chasing accused. While running accused tried to cross iron grill, but he tangled with it and sustained injuries on his face. Accused again started running and while running accused hit with a scooter and he fell on the road. He apprehended accused. In the meantime, police officials came and he handed over the accused to IO. IO recorded his statement.
During his cross examination, he deposed that he studied upto 6th standard. He met accused on the day of his apprehension only. Accused stated that he was resident of Subzi Mandi. His statement was recorded by the police officials on the same day. He was never called again by the police officials. He did not know the house of accused. He denied the suggestion that he knew accused before hand and he used to roam with the accused. He denied the suggestion that accused has been falsely implicated in the present case. He denied the suggestion that he did not chase accused or apprehended him. He denied the FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 9 of 20 suggestion that he himself took accused to his home and gave beatings to him due to which accused sustained injuries on his face. He denied the suggestion that when accused tried to save himself from him and ran from his clutches. He shouted chor- chor. He denied the suggestion that he and accused resides in the same vicinity and he knew accused before hand. He denied the suggestion that he took out money from accused and when accused demanded back he gave beatings to accused. At the time of apprehension of accused, one person namely Golu and police official were gathered at the spot. He knew Golu as he is his neighbour. Golu accompanied him in his vehicle as he had taken the articles of Golu's brother-in-law. Golu did not give any statement to police. He volunteered that Golu did not chase accused. He denied the suggestion that he deposed falsely.
12. PW-6/Retd. ASI Rajender Singh deposed that on 03.08.2014, he was posted as HC with PP Andha Mugha, PS Gulabi Bagh. On that day, he alognwith Ct. Ram Niwas were on patrolling duty vide DD No. 29PP and when they reached near metro pillar No. 111 where they met complainant and his son who narrated the facts of the case to him. The complainants FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 10 of 20 handed over accused Arjun Kumar. He correctly identified accused in the Court. He recorded statement of complainant which is already Ex. PW1/A. He endorsed the same at point B. He prepared rukka which is Ex. PW6/A bearing his signature at point A and handed over the same to Ct. Ram Niwas for registration of FIR. After some time, Ct. Ram Niwas returned to spot with original rukka and copy of FIR and handed over the same to him. He prepared the site plan which is Ex. PW6/B bearing his signature at point A. He arrested accused vide arrest memo already Ex. PW1/B bearing his signature at point C. Personal search of accused was conducted vide search memo already Ex. PW1/C bearing his signature at point C. He also recorded disclosure statement of accused which is already Ex. PW1/D bearing his signature at point B. Thereafter, accused took them to the spot and pointed out towards the spot and he prepared pointing out memo which is already Ex. PW2/A bearing his signature at point B. MLC of injured got prepared. Thereafter, they returned to PS and accused was put behind bars. During investigation, age verification of accused was conducted. He collected the school admission record from Principal of M.C. Primary, P.S. School, Roshanara Road, Delhi which is Ex. PW6/C. He recorded statement of witnesses. He handed over the FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 11 of 20 case file to MHC (R) as he went to leave.
During his cross examination, he deposed that his duty was from 08:00pm to 08:00am on the date of incident. Accused was handed over to him by complainant and his son. The age of son of complainant might by 22-24 years at the time of incident. He had not seen son of complainant and accused fighting. He denied the suggestion that he falsely implicated accused. The distance between spot and place of apprehension of accused is about 20-25 yards. Place of incident is little far from the road. He could not exactly tell the exact distance but it might be 20-25 yards. No public person joined investigation as no one present there except complainant and his son. He denied the suggestion that 10-15 public persons gathered at the place of incident. He denied the suggestion that he falsely implicated the accused at the instance of complainant. Articles were seized as per the personal search memo i.e. one mobile phone without SIM and battery and Rs. 2352/-. He did not inquire about the ownership of the mobile phone seized during personal search. He denied the suggestion that he intentionally did not seize sim and battery of mobile of accused. No CCTV footage was found covering the spot. He did not take complainant to the hospital for first aid. He FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 12 of 20 took the accused to the hospital for medical examination by auto. He did not remember number of auto. He was on patrolling duty on Government bike. He did not remember the number and colour of said bike. Accused suffered injuries over his right hand and face. He denied the suggestion that complainant and his son beaten accused. Accused fell down while being chased due to which he suffered injuries as told by accused himself. He went to spot same day to prepare pointing out memo. Thereafter, he did not go to the spot for investigation. He denied the suggestion that he deposed falsely.
13. PW-7/SI Ashok Kumar deposed that on 29.08.2014, he received the present case file. Investigation was done by HC Rajender Singh it was complete. Thereafter, he filed the chargesheet before the Hon'ble court on 07.11.2014. STATEMENT / DEFENCE OF THE ACCUSED
14. Statement of accused u/s 313 Cr.PC recorded. The accused opted to lead evidence in his defence.
15. DW-1/Amrawati deposed that on the day of incident, she FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 13 of 20 woke up her son namely Arjun at around 4.30 am at his house. Her son after attending nature's call went outside for walk in the park. She came to know that there was quarrel between Suraj and her son Arjun Kumar and her son has been apprehended by the police. Police came to her house at around 8.00 am. Police told her that her son has been arrested by police officials and accused also come at police station to know about the matter and he said that here he will not tell her about the incident. Thereafter, she went to the police station Gulabi Bagh, however she was not heard thereof and police officials did their work at their own. Thereafter, police officer arrested her son and sent him to JC. Her son is innocent and he has not done anything wrong.
During his cross examination by Ld. APP for the State, she deposed that she knew Suraj before the date of incident. Her son and Suraj were acquainted with each other, however they were not best friends. Her son usually gets up at about 4.30 am. Her son used to generally go for walking but nowadays, due to illness, her son does not go for walk regularly. She knew Surender Singh also as he used to drive vehicle at the place where her husband works. She did not know the house number of Surender Singh but he resides in the area of Hema Katra. The date of incident is 4th day of 8th month, however she did not know FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 14 of 20 the year of the same. She did not know if recovery of Rs.2,352/- was effected from her son. She volunteered that one mobile phone was also recovered. She denied the suggestion that her son was not at home at about 4.00 am on 04.08.2014. She denied the suggestion that she did not remember the exact date, month and year of the incident as the incident is correct and her son has been rightly apprehended by the complainant. He denied the suggestion that she did not wake up her son as he was not available at the home. She denied the suggestion that there was no scuffle between Suraj and his son. She denied the suggestion that accused i.e. her son had committed lurking trespass and tried to take away the mobile phone as well as money from the pocket of complainant. She denied the suggestion that she deposed falsely to save her son/accused from criminal liability being his mother. She denied the suggestion that she deposed as interested witness.
ARGUMENTS
16. Sh. Vishal Gupta, Ld. Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused has been correctly identified by the witnesses. He stated FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 15 of 20 that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
17. On the other hand, Sh. Ashok Kumar, Ld. Counsel for the accused submitted that the accused has been falsely implicated by the complainant due to money transactions and nothing was recovered from his possession. He submitted that son of complainant and accused are well acquainted with each other and when accused demanded his money back complainant alongwith son of complainant beaten the accused and falsely implicated him in the present case. He prayed for acquittal of the accused.
ANALYSIS AND FINDINGS
18. The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
19. In order to prove the case against accused u/s 457 IPC FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 16 of 20 following essential ingredients are required to be proved by the prosecution:-
(1) there was lurking trespass by night or house- breaking by night; and (2) the house-trespass or house-breaking was in order to commit an offence punishable with imprisonment.
20. In order to prove the case against accused u/s 380 IPC following essential ingredients are required to be proved by the prosecution:-
(I) that the accused committed theft;
(ii) That such theft was committed in any building, tent or vessel; and
(iii) That such building, tent or vessel was used as a human dwelling, or used for the custody of property.
21. In order to prove the case against accused u/s 511 IPC following essential ingredients are required to be proved by the prosecution:-
(a) the offender should have done some act towards commission of the main offence;
(b) such an attempt is not expressly covered as a penal provisions elsewhere in the IPC.
22. The very first ingredients for proving the offence u/s 457/380/511 IPC, accused must have entered into house FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 17 of 20 concealing himself with intention to commit offence. The Testimony of complainant/PW-1 Surender Singh is very crucial to prove the guilt of the accused. PW Surender Singh deposed before this Court that on 04.08.2014 he was present in his house at about 04:00am when he got to urinate he heard some noise and saw accused in his room stealing from his shirt. He raised alarm and son came in a vehicle and chased the accused. Accused was apprehended by the complainant and his son. Though accused throw away the mobile phone of complainant but the money was recovered from him. Police officials on patrolling duty came and accused was handed over to them. Nothing contradictory came out in the cross examination of Surender Singh. Eye witness Suraj duly corroborated the version of the complainant and stated that accused Arjun Kumar entered in the house of complainant by taking precaution to conceal such trespass and attempted to commit theft by making attempt to remove from the pocket of complainant from his dwelling house without his consent Accused and case property was duly identified by the witnesses.
23. PW-5/Suraj was the eye witness stated that when he reached his home he heard noises chor-chor and saw accused FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 18 of 20 running and he chased the accused. Accused while trying to cross iron grill, he tangled with and sustained injuries on his face. Accused again started running and while running accused hit with a scooter and fell on the road. Thereafter, he apprehended accused and no substantial contradiction came in his cross examination.
24. Testimonies of complainant/PW-1 Surender Singh and PW-7/Suraj are sufficient to prove the guilt of accused which even does not require any corroboration. However, the version of complainant and his son duly supported by PW/Ct. Ram Niwas and ASI Rajender Singh. There is no merit in the arguments of Ld. Counsel for accused that not making wife of complainant, his son Mohan and Golu who accompanied complainant to the police station as witnesses in the present case creates doubt and possibility of false implication of accused due to money transaction or previous enmity.
25. In the present case, the testimony of the complainant and his son is free from blemish or suspicion and duly impresses Court regarding truthfulness, same is also trustworthy, FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 19 of 20 categorically free from any bias and there is nothing on record to suggest that complainant had any motive to falsely implicate the accused and same was duly corroborated by Ct. Ram Niwas and ASI Rajender Singh. Even the defence witness brought by the accused namely Smt. Amrawati who is mother of accused did not depose about any enmity between complainant and accused and no evidence of money transaction between them was proved before his Court. This Court has no hesitation in recording the conviction of the accused.
26. In view of the above discussion, Court is of the view that prosecution has successfully proved that accused Arjun Kumar committed house trespass in order to commit offence punishable with imprisonment and committed theft of mobile phone and its case beyond reasonable doubt. Accused Arjun Kumar is convicted for offence u/s 457/380/511 IPC.
27. Be heard on the point of sentence.
Announced and Signed in the Open Court ANUJ Digitally signed by ANUJ KUMAR KUMAR on 31st May, 2024 SINGH Date: 2024.07.05 SINGH 16:32:32 +0530 (Anuj Kumar Singh) Addl. Chief Metropolitan Magistrate-02 Central/Tis Hazari Courts/Delhi(A) FIR No .122/2014 State Vs Arjun Kumar PS: Gulabi Bagh Page No. 20 of 20