Delhi District Court
3.Title State vs . Saif @ Deny on 5 June, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. FIR No. 316/2022, PS Bhajanpura
2.Unique Case no. 2446/2022
3.Title State Vs. Saif @ Deny
3(A).Name of complainant Sh. Bhushan Kumar Sharma
Late Sh. Jagdish Prasad Sharma
R/o H. No. F-99, Gali no. 1, Subhash
Vihar North Ghonda, Bhajanpura, North
East, Delhi
3(B).Name of accused Saif @ Deny
S/o Saleem
R/o H. No. D-88, Gali no. 2, Noor Ilahi,
North East Delhi.
4.Date of institution of 13.05.2022
chargesheet
5.Date of Reserving judgment 23.05.2023
6.Date of pronouncement 05.06.2023
7.Date of commission of offence Intervening night of 08.04.2022-
09.04.2022
8.Offence complained of U/s 380/457/411 IPC
9.Offence charged with U/s 457/380/411 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Convicted U/s 457/380/411 IPC
12. Date of receiving of judicial 13.05.2022
file in this court
Argued by :-1. Ms. Deepika Singh, Ld. APP for the State.
2. Ms. Asha Ld. LAC for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Bhushan Kumar Sharma stating that on the intervening State Vs. Saif @ Deny Page 1 of 17 FIR No. : 316/2022 night of 08/09.04.2022 at around 04.00 to 05.00 a.m., while he was sleeping in his house at F-99, Gali no. 1, Subhash Vihar, Delhi, he heard some sound coming from the gate of his room. When he opened the gate, he saw one boy standing with one plastic katta filled with items near the stairs. Therefore, he raised alarm and his son Lavi and his tenant Ayush (residing on the ground floor of the said property) alongwith people of the colony came there and the said boy was over powered and apprehended. On opening the said plastic katta, he was found carrying one cooler motor with blade and stand, one gas stove alongwith rubber pipe and regulator and one juicer mixer make Onida which belonged to him. Further, the said person disclosed his name as Saif S/o Saleem. Thereafter, he called the police and on the basis of the complaint, FIR bearing no. 316/2022, PS Bhajanpura was registered u/s 457/380/411 IPC. Further, one broken lock and iron rod was also recovered from the said boy. After completion of investigation, chargesheet was filed u/s 457/380/411 IPC qua the accused.
2. On 27.05.2022, cognizance was taken and accused was summoned for the offence u/s 457/380/411 IPC IPC. On 22.07.2022, charge was framed against the accused for the offence punishable u/s 457/380/411 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution had named 6 witnesses in the charge sheet. However, accused did not dispute the registration of FIR and DD no. 47 A dated 09.04.2022 which were exhibited as Ex-D1 and Ex. D2 respectively. In view of statement of accused u/s 294 Cr.P.C., the corresponding witness was dropped. Only 5 witnesses were examined.
4. Bhushan Kumar Sharma was examined as PW-1. He has deposed that he is residing at F-99, Gali no. 1, Subhash Vihar North Ghonda, Garhi Mendu North State Vs. Saif @ Deny Page 2 of 17 FIR No. : 316/2022 East Delhi-53 for the past 35 years and also running an electrical shop at the ground floor of the said property. On 08.04.2022, he slept around 11:00 pm. However, at about 4:00 am / 05:00 am, he woke up and saw one boy who was stepping down from the stairs case and heading towards gate. He also saw that said boy was carrying a white plastic katta / bag in his hand. He further stated that on seeing him, he immediately raised an alarm and in the meantime his son, namely, Lovee and his neighbour Ayush Jain arrived there. The said boy was apprehended and thereafter he called the police. He further stated that on the arrival of the police, the boy as well as the plastic bag was handed over to the police. On inquiry, he came to know the name of said boy as Saif (witness correctly identified the accused present in the court). Further he deposed that on checking the bag, one cooler motor alongwith fan blade and one gas stove attached with rubber pipe alongwith regulator, one mixer grander (motor only) make Onida were found inside which the said boy had stolen from his house. He further deposed that one iron rod and a broken lock were also lying there which were recovered by the police. He stated that police recorded his statement Ex.PW1/A and he then showed the spot to the police where the present incident had occurred. Thereafter he stated that the aforesaid stolen property was taken into police possession and seized vide seizure memo Ex.PW1/B The aforesaid iron rod and lock were also taken into police possession and seized vide seizure memo Ex.PW1/C. Thereafter, accused was arrested vide arrest memo Ex.PW1/D. He thereafter identified the photographs of his house which show a ladder connecting the underconstruction house with the roof of his house. The photographs were exhibited as Ex.PW1/E (Colly. 4). he also correctly identifed the case property Ex.P-1 (Colly. 2) and Ex.P-2 (Colly. 3). Thereafter he was cross examined by Ld. LAC for the accused wherein he stated initially Lovee and Ayush Jain came to the spot. He further stated that later on 15-20 other persons also gathered. He stated that he called the police through his mobile phone. He admitted that he does not have any State Vs. Saif @ Deny Page 3 of 17 FIR No. : 316/2022 bills of the aforesaid property. He also admitted that photographs were not taken in his presence. He also admitted that police did not record the statement of public person in his presence.
5. Sh. Ayush Jain was examined as PW 2. He has deposed that he was residing at F-61/2, Gali no. 1, Subhash Vihar, Bhajanpura, Delhi since his birth. He stated that as his aforesaid house was under construction, he alongwith his family shifted to the ground floor to the house of complainant Bhusan Sharma which is situated in front of his house. He further deposed that on 09.04.2022 at around 4:30 a.m, he heard some noise like "chor Chor". He further stated that he immediately opened the door of his room and saw Bhusan Sharma chasing a person. Thereafter, the said person carrying a white colour plastic bag was apprehended with help of public persons. On checking the plastic bag, it was found that the said person was carrying one mixer, one gas stove/bhatti attached with gas pipe and regulator, one iron rod and one cooler motor kit in the said plastic bag. Thereafter, PW 1/complainant informed the police and on the arrival of police, they handed over the custody of accused as well as case property to them. Thereafter, he came to know that the name of said person is SAIF@DENY. On inquiry, he narrated the whole incident to the police (he correctly identified the accused Saif @ Deny present in the Court as well as the case property already exhibited as Ex. P1 (colly) and Ex. P2 colly. during the deposition of PW1). He also identified the photographs of the spot i.e. Ex. PW1/E (colly), Thereafter, in his cross examination, he deposed that accused was carrying the plastic bag when he opened his room. He admitted that no other public person was made to join the investigation in his presence. He also admitted that photographs Ex. PW1/E were not taken in his presence. He conceded that he has good relation with the complainant. He also conceded that he did not see the accused commit theft but only saw him taking away the plastic bag in his hand.
State Vs. Saif @ Deny Page 4 of 17 FIR No. : 316/2022
6. HC Sh. Moshin Khan was examined as PW3. He has deposed that on 08.04.2022, he was posted at PS Bhajanpura on an emergency duty from 8:00 p.m on 08.04.2022 to 8:00 a.m 09.04.2022. On 09.04.2022 at early morning, at around 4:40 a.m, he stated that investigation was marked to ASI Yasin khan vide DD no. 25A dt. 09.04.2022 PS Bhajanpura which is Ex. PW3/A. Thereafter he alongwith ASI Yasin Khan reached at the spot where the complainant Bhushan Sharma met them and produced the accused namely Saif @ Dany alongwith a plastic bag/katta. The said bag/katta and accused was taken into police custody. The said bag/katta was checked and found having one electric fan motor alongwith blades, one gas stove (bhatti) and one plastic gas pipe with regulator and a mixter juicer/grinder make Onida Company. The accused Saif @ Dany was also found to be beaten by some public persons. Thereafter, during the investigation, he stated that they inspected the 1 st floor of the house where at the main gate, one iron rod/saria and one broken lock was found lying there. ASI Yasin/IO took the photographs through his mobile phone. Thereafter, IO directed him to get the medical examination of accused conducted. After getting his medical examination done, he came back the spot alongwith MLC of the accused which was given to the IO for further action. He stated that then the IO recorded the statement of complainant Ex. PW1/A and prepared a rukka over the same. IO got the FIR registered on aforesaid complaint/rukka and returned back to the spot. Thereafter, IO prepared site plan at the instance of complainant and seized the aforesaid stolen property vide seizure memo Ex. PW1/B after preparing a pullanda and sealed with the seal of "YK". Further, aforesaid broken lock and rod/saria were also seized after preparing a pulldana and sealed with the seal of "YK" vide seizure memo Ex. PW1/C. Accused Saif @ Dany was arrested vide arrest memo Ex. PW1/D and personally searched vide personal search memo Ex. PW3/B. Thereafter, they came back to the PS where the case property was deposited in the State Vs. Saif @ Deny Page 5 of 17 FIR No. : 316/2022 malkhana and accused was lodged up at police lock up. He correctly identified the accused Saif @ Deny present in the Court. He also identified the case property. He was cross examined by counsel for accused wherein he admitted that no recovery was made from the accused in his presence. He also admitted that no bills of the stolen property were collected by the IO from the complainant. He denied the suggestion that recovery has been planted upon the accused.
7. ASI Yasin Khan was examined as PW 4. He has deposed that on 09.04.2022, vide DD No. 25A, information was received to the Duty Officer that a thief has been arrested which is already Ex. PW3/A. Thereafter, he alongwith Ct. Mohsin/PW3 reached Subhash Vihar, North Ghonda, Bhajanpura, Delhi where they met with the complainant Bhushan Kumar and public persons who had gathered at the spot. Complainant handed over to him the accused and one heavy white colour plastic katta alongwith one broken lock and one iron rod for breaking the lock. Public persons had given severe beatings to the accused. Therefore, he directed Ct. Mohsin to take the accused to JPC Hospital for his medical examination as he was injured. He further stated that opposite to complainant's house, there was one under construction house and with the help of stairs kept at under construction house, accused came inside the house of complainant. Thereafter, Ct. Mohsin alongwith accused came to the spot after medical examination of accused. Then, the articles inside the plastic katta were taken out and one motor of cooler (air cooler) with one blade with iron patti, gas stove (bhatti), regulator, pipe and mixer juicer were recovered and thereafter the katta was tagged with cloth and sealed with the seal of "YK". Thereafter, iron rod and broken lock were also sealed with seal of "YK". He further stated that then he recorded written the statement of complainant which is already Ex. PW1/A. Thereafter, he prepared tehrir from point C to point D which is Ex. PW4/A and went to the PS alongwith original tehrir and got the State Vs. Saif @ Deny Page 6 of 17 FIR No. : 316/2022 FIR registered. Thereafter, he came back to the spot and at the instance of complainant, he prepared the site plan which is Ex. PW4/B. Thereafter, he had took the photographs of the spot from his mobile. He correctly identified the said photographs which are already exhibited as Ex. PW1/E. Thereafter, he took the accused to the PS and arrested the accused vide arrest memo Ex. PW1/D and personally searched the accused vide personal search memo Ex. PW3/B. He then recorded the disclosure statement of accused Ex. PW4/C. He had also prepared the seizure memo of the stolen articles recovered at the spot from the katta which is Ex. PW1/B. He had also prepared the seizure memo of broken lock and iron rod/sariya which is Ex. PW1/C. He correctly identified case property already Ex. P1 (colly 2) and Ex. P2 (colly. 3. ). In his cross examination, he stated that he received information from duty officer regarding DD No. 25A at about 4:40 a.m. He further stated that no separate departure entry was made as departure entry was made by the duty officer other than the DD which was given by the Duty Officer. He further stated that he left the PS on his private motorcycle and reached the spot at about 4:55 a.m. He admitted that no recovery of the said articles has been effected from the accused in his presence. He stated that the complainant has produced the articles as well as accused person to him. At about 5:30 a.m, he had sent the accused to the hospital for his medical examination alongwith Ct. Mohsin. He stated that the articles were taken out from the katta in the presence of accused, Ct. Mohsin and public persons. He admitted that he had not recorded the statement of public persons in whose presence, the articles were taken out from the katta nor did he note down their names and address. He also admitted that he had not taken the signature of any public person on the seizure memo i.e Ex. PW1/B and Ex. PW1/C. He denied the suggestion that the recovery has been planted. He also admitted that he had not placed any document regarding the mobile phone on which the photographs Ex. PW1/E were taken. He stated that he took the print of these mobile photographs from colour printer but he cannot State Vs. Saif @ Deny Page 7 of 17 FIR No. : 316/2022 tell the shop from where he had taken the prints of these photographs and he admitted that he had not placed on record the certificate U/s 65B Indian Evidence Act. He also admitted that he had not collected the bills of the stolen articles as the same were old and complainant stated that he cannot produce the bills. He admitted that he had not taken photographs of stolen articles. He also admitted that he had not taken the photographs of accused at the spot when he was handed over to him by the complainant.
8. HC Sachin was examined as PW 5. He has deposed that case property was deposited by IO ASI Yasin on 09.04.2022 vide MUD no. 3657/22. Certified copy of the register no. 19 is Ex. PW5/1. He was cross examined wherein he stated that he do not have personal knowledge of the case as he was in the MHC(M) on the said time.
9. Statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C was recorded on 04.05.2023 wherein he denied the allegations in toto. He stated that he does not wish to lead defence evidence and has been falsely implicated in the present case. Thereafter, matter was fixed for final arguments. However during the argument, it was observed that certain documents have not been put to the accused in his statement under Section 313 Cr. PC/281 Cr. PC. Therefore, fresh statement of accused was recorded on 23.05.2023.
10. Final arguments were addressed by Ld APP for the state and by Ld. LAC Ms. Asha Kumari on behalf of accused. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
State Vs. Saif @ Deny Page 8 of 17 FIR No. : 316/2022
11. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law. Now, theft is defined under section 378 IPC and theft in dwelling house is defined under section 380 IPC. Both the provisions are reproduced hereunder:
Section 378 IPC: 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.
Section 380 IPC: 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.
12. From the aforesaid definition it is clear that the essential ingredients of theft are:
a) Moving of moveable property out of possession of a person
b) Absence of consent of the person
c) Dishonest intention in so moving and at the time of moving
13. A person can be said to have dishonest intention if in taking the property it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It is further clear that the gain or loss contemplated need not be a total acquisition or total deprivation. It is enough if it is temporary retention of the property by the person so gaining or temporary keeping out of property from the person legally entitled. Hence, theft under Indian Penal code is different from English Law of larceny which contemplates permanent gain or loss (Ramesh Chander Sanyal Vs. Hiru Mondal (1890) 1LR 17 Cal 852 relied upon). Further, theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling is an aggravated form of theft because it intimidates causes fear to the State Vs. Saif @ Deny Page 9 of 17 FIR No. : 316/2022 people living in the house. Thus, for the offence punishable under section 380 IPC, the following facts are required to be proved by the prosecution:
a) Moving of articles out of possession of complainant
b) Such moving was without consent of complainant
c) Accused had dishonest intention in such moving
d) Articles were moved out of dwelling house of complainant
14. Now with respect to the offence of house trespass, the relevant sections are reproduced hereunder:
441. Criminal trespass.: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"
442. House trespass.: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass: Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house- trespass"
444. Lurking house-trespass by night: Whoever commits lurking house- trespass after sunset and before sunrise, is said to commit "lurking house- trespass by night".
445. House breaking-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 hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say-
State Vs. Saif @ Deny Page 10 of 17 FIR No. : 316/2022 First.-If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house- trespass.
Secondly.-If he enteres or quits through any passage not intended by any erson, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly.- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly.-If he enters or quits by opening any lock in order to the committing of the house-trepass, or in order to the quitting of the house after a house-trespass.
Fifthly.- If he effects his entrance or departure by using criminal force or committing an asault or by threatening any person with assault. Sixthly.-If he enters or quits by any passae which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
Explanation.-Any out-house or building occupied with a house, and between which and sush house there is an immediate internal communication, is part of the house within the meaning of this section.
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--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.
15. From the above, it is clear that intention to commit an offence is an essential ingredient. Mere occupation even if illegal cannot amount to criminal trespass(1983 CRI. L. J. 173 Kanwal Sood v. Nawal Kishore relied upon). Intention to insult or annoy person in possession of property is essential ingredient.Criminal trespass would also cover act of unlawfully remaining in property belonging to another - But such act of remaining in property of another would be criminal trespass only if accompanied by criminal State Vs. Saif @ Deny Page 11 of 17 FIR No. : 316/2022 intent. Further if there is no evidence of criminal trespass, no offence of house trespass could be said to be established. It is also important that complainant must be in unquestionable possession of property at time of trespass alleged (1996 CRI. L. J. 256 State of Goa v. Pedro Lopes).
16. The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when S. 441 Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry. (AIR 1964 SUPREME COURT 986 "Mathri v. State of Punjab" relied upon).
State Vs. Saif @ Deny Page 12 of 17 FIR No. : 316/2022
17. Coming to the merits of the present case, prosecution is required to prove the following facts:-
a) Entry of accused in the house of the complainant at night time.
b) Such entry was made by house breaking i.e. by opening the door which was fastened.
c) Purpose of entry was to commit theft.
d) In furtherance of said entry, accused removed articles from the possesssion of the complainant.
e) The said articles were removed with the dishonest intention.
f) Articles removed were recovered from the possession of the accused.
g) Said articles had been retained by the accused having knowledge or reasons to believe to be stolen property.
18. It is the case of the prosecution that on the intervening night of 08/09.04.2022, accused Saif @ Deny with an intention to commit theft, entered into an under construction house and thereafter went to the first floor of the said house. Accused then used a ladder (wooden) for going from the said under construction house and entered in the balcony of the house of the complainant and thereafter used an iron rod to break the lock of the door of the complainant. On entering the house of complainant, accused removed one motor of cooler alongwith fan blade, one gas stove attached with rubber pipe alongwith regulator, one motor of mixer grinder make ONIDA and was escaping from the house when he was apprehended at the spot by the complainant with the help of his neighbour Ayush who was living in the house of complainant as his house was under construction.
19. Persual of testimony of PW 1 shows that he has categorially deposed that on the night of 08.04.2022, he slept around 11.00 p.m., and between 04.00 a.m. to State Vs. Saif @ Deny Page 13 of 17 FIR No. : 316/2022 05.00 a.m., when he woke up on hearing a sound, he saw a boy carrying a white plastic katta/bag in his hand in his house. He immediately raised alarm and the said boy was apprehended with the help of his son Lovi and his neighbour Ayush Jain. He correctly identified the accused, present in the court. His testimony in this respect has been corroborate by PW 2 Ayush Jain as well who has deposed that at around 04.30 a.m., on the intervening night of 08/09.04.2022, he heard noise, "chor chor" and saw the complainant/PW 1 chasing a person carrying a white plastic bag and the said person was apprehended. He too correctly identified the accused present in the Court. Both have deposed that one cooler motor alongwith fan blade, one gas stove attached with rubber pipe alongwith regulator, one motor of mixer grinder make ONIDA was recovered from the said plastic bag. There is no delay in lodging of complaint as well. Both PW 3 i.e. HC Mohsin Khan and IO/PW 4 have stated that complaint in this regard was received in the PS vide DD no. 25 A at 04.40 a.m. which is Ex. PW 3/A. Further, PW 1 as categorically deposed that a broken lock which he had installed on the door of his house was also recovered alongwith one iron rod. The said lock and the iron rod is Exhibited as P1 (colly 2) and was correctly identified by the complainant in his examination. Nothing has been brought in the cross examination of the witnesses to show that the accused has been falsely implicated. No suggestion was put to the PW 1 and PW 2 that the goods recovered from the accused were not of the complainant. No defence has been brought on record as to how accused reached the house of the complainant. There is no previous relation between the parties. Moreover, it was the accused himself who could have explained the circumstance either by leading the defence evidene or through cross examination to show as to how or why he reached the house of the complainant and was carrying the goods of the complainant without his consent in a white plastic bag. Section 106 of Indian Evidence Act provides that whenever any fact is especially within the knowledge of any person, the State Vs. Saif @ Deny Page 14 of 17 FIR No. : 316/2022 burden of proving that fact is upon him. But nothing has been brought on record in the present matter. Further with respect to entry of accused in the house, broken lock and iron rod has been recovered which is Ex. P1. It has been correctly identified by the complainant and IO. Even through photographs Ex. PW1/E collectively are not admissible and cannot be relied upon in view of absence of certificate under Section 65 B of Indian Evidence Act, but there is no other point of entry of accused in the house. It is a special circumstance which is within the knowledge of accused himself. All the circumstances point to the hypothesis of entry of accused in the house by breaking the lock and are corroborated by surrounding circumstances given the consistent testimony of PW 1 and PW 2. Hence, I find that prosecution has successfully proved that acccused entered into the house of the complainant by breaking the lock. Nothing inimical has been elicited in the cross examination of the prosecution witnesses to show that the complainant or the police officials were inimical to the accused or had a motive to falsely implicate him. As held by the Supreme Court in the decision reported as "Karamjeet Singh Vs. State of Punjab (2009), 7SCC 178", testimony of the witnesses cannot be discarded merely because they are police officials. Intention of the accused as inferred from the circumstance of him carrying goods of the complainant without his consent show dishonest intention to cause wrongful loss to the complainant by removing the goods from his possession. Since, no explanation or evidence has been led in this regard, therefore adverse presumption is drawn against the accused under Section 114 (g) Indian Evidence Act that he had knowledge or at least reasons to believe the goods in question to be stolen property.
20. It is trite to state that testimony of witness should viewed from broad angles. It should not be weight in golden scales but with cogent standards. In a particular case, an eyewitness may be able to narrate the incident with all details without mistake, if occurrence, had made an imprint on the canvas of his mind in the State Vs. Saif @ Deny Page 15 of 17 FIR No. : 316/2022 sequence in which it ocurred. He may be a person whose capacity in absorption and retention is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone (Reference is had to decision of Supreme Court in Abdul Sayeed Vs. State of M. P. (2010) 10 SCC 299).
21. In the present case, PW 1 is a direct witness of incident. His testimony is consistent and corroborated by testimony of PW 2. There is no contrary statement. Further, no inconsistencies or even exaggerations in his testimony has been brought out in the cross examination. Hon'ble Apex ourt in Nankaunoo VS. State of UP (2016) 3 SCC 317 in three Judge bench decision has held that where witnesses give consistent version of the incident, then the consistent testimony of the witnesses should be held credible. Hence, in view of consistent testimony of PW 1 and PW 2, I find that prosecution has successfully discharged its burden and proved the factum of accused removing articles i.e. one cooler motor alongwith fan blade, one gas stove attached with rubber pipe alongwith regulator, one motor of mixer grinder make ONIDA from accused on the intervening of 08/09.04.2022 at about 04.30 p.m. with removed the possession of complainant. Even though accused was not able to leave the house of the complainant, moving of property from possession of complainant is sufficient to constitute theft. (Reference is had to the decision of the Supreme Court in case titled as Pyare Lal Bhargava Vs. State of Raj, AIR 1963 SC 1094). Even otherwise, convicing evidence is required to discredit the testimony of witness who has actually suffered at the hand of accused. The testimony of such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant in order to falsely implicate someone else.
State Vs. Saif @ Deny Page 16 of 17 FIR No. : 316/2022
22. The concomitant of the aforesaid discussion is that the prosecution has successfully proved the ingredients of the offence punishable under section 457/380/411 IPC beyond reasonable doubt. In view of the aforesaid discussion and findings, accused Saif @ Deny is convicted for the offences punishable under section 457/380/411 IPC. Matter be listed for arguments on sentence. Previous conviction report, if any, be summoned through IO concerned. Copy of judgment be provided free of cost to the accused. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.06.05 DHIMAN 13:20:50 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 05.06.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains seventeen (17) pages and each page bears my signature.
RUPINDER Digitally
RUPINDER
signed by
SINGH SINGH DHIMAN
Date: 2023.06.05
DHIMAN 13:21:01 +0530
(RUPINDER SINGH DHIMAN)
Metropolitan Magistrate-01
NE/KKD Courts, Delhi
05.06.2023
State Vs. Saif @ Deny Page 17 of 17 FIR No. : 316/2022