Delhi District Court
Rashid vs State Of Nct Of Delhi on 10 May, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE
(NDPS) SOUTH EAST: SAKET COURTS: NEW DELHI
CA No. 107 of 2019
Rashid
S/o Late Sheikh Abdul Rafik,
R/o House No. G376,
BlockT, Huts,
Jahangir Puri,
New Delhi. .......... Appellant
Vs.
State of NCT of Delhi .......... Respondent
Instituted on : 16.02.2019
Argued on : 08.05.2019
Decided on : 10.05.2019
JUDGMENT
1 The appellant has impugned the judgment dated 15.01.2019 vide which he has been convicted u/s 454/380/511 IPC and order on sentence dated 17.01.2019 vide which he has been sentenced to undergo RI for 3 years with fine of Rs.100/ for Rashid Vs. State - CA No. 107 of 2019 1 of 16 the offence u/s 454 IPC and in default of payment of fine to undergo SI for 5 days and sentenced to undergo RI for 3 years with fine of Rs.100/ u/s 380/511 IPC and in default of payment of fine to undergo SI for 5 days. Both the sentences shall run concurrently. The benefit of Section 428 Cr.PC is granted to him. 2 The appeal has been filed on the grounds that there are material latches on the part of IO which have remained unexplained from the prosecution. There are number of contradictions in the testimony of prosecution witness. There is no ingredients of Section 380 IPC or that of 454 IPC. No public witness has been associated. The evidence on the record does not call for the conviction of the appellant. Hence, this appeal. 3 Notice of the appeals is given to the prosecution. 4 The facts of the case are like this. The complainant Ashish Gupta gave his statement to the police with the allegations that on 06.10.2011 at 12:30 PM he has locked his house bearing Rashid Vs. State - CA No. 107 of 2019 2 of 16 no. 242, Deshbandhu Apartments, Kalkaji, New Delhi. He has alongwith his family has gone out after locking the house. At 06:00 PM he came back to his house and saw that lock of gate of outer boundary wall is broken. The gate is lying open. He went inside and saw that three boys were breaking the lock of the main gate of the house. One of them i.e. appellant was apprehended and other two boys fled from the spot. The public persons gathered on the spot and gave beatings to the appellant. The police were informed. The appellant, rod and screw driver were handed over to the police. He can identify the boys who have fled from the spot. His statement was recorded which led to the registration of FIR. After usual investigation, charge sheet u/s 454/380/511 IPC was filed against the appellant. 5 Copy of the charge sheet and documents were supplied to the appellant. Charge u/s 454/380/511 IPC was framed against the appellant to which he pleaded not guilty and Rashid Vs. State - CA No. 107 of 2019 3 of 16 claimed trial.
6 Prosecution examined 4 witnesses. Prosecution evidence was closed. Appellant was examined u/s 313 Cr.PC. His defence is that he has come to the place of his relatives at Kalkaji. He has been falsely implicated. He has not led any defence evidence.
7 Ld. Trial Court after hearing Ld. APP for the State, Ld. Defence Counsel and perusing evidence on record convicted and sentenced the appellant u/s 454/380/511 IPC. 8 PW1 Ashish Gupta is the complainant. He stated that on 06.10.2011 at 12:30 PM he alongwith his family has gone out for some work. They came back at 06:00 PM and saw that lock of the main door is broken and main door is lying open. He went near the gate and saw that three person are breaking the locks. All of them started running in different directions on seeing them. He chased one of them and apprehended him with the help of public Rashid Vs. State - CA No. 107 of 2019 4 of 16 persons. He is appellant who was beaten by the public persons. He has called the police. The appellant was handed over to the police. Two broken locks, another one about to be broken, iron rod and screw driver were recovered from the spot. His statement Ex.PW1/A was recorded. Site plan Ex.PW1/B was prepared at his instance. Two broken locks, another one about to be broken, iron rod and screw driver were taken into possession vide fards Ex.PW1/C & D. During cross examination he stated that there is boundary wall of the society. He saw that main entry door of his house was broken and three persons were trying to break open the lock of the inside door of his house. There are 5 entry gates to the society but security guards are not deputed at all time on all the gates. Two locks were broken out of which one was of the main gate and other was of the inside door. He does not remember whether both the locks were handed over to the police. He has handed over iron rod, screw driver and chenni to the police. He Rashid Vs. State - CA No. 107 of 2019 5 of 16 has apprehended the appellant after the chase of 150 - 200 meters in the Central Park which is in the society itself. Vijay Dashmi was on the day of incident. The suggestion is denied that he had a quarrel with the appellant in the park as they went there to see the burning of effigies of Ravana. The suggestion is denied that he did not hand over articles to the police or no such incident has taken place.
9 PW3 ASI Suresh Chand has proved FIR Ex.PW3/A and endorsement Ex.PW3/B on the rukka.
10 PW4 SI Janak stated that on 06.10.2011 DD No. 18 Ex.PW4/A was handed over to him upon which he alongwith PW2 HC Mahesh went to 242, Deshbandhu Apartments, Kalkaji, New Delhi where complainant Ashish and appellant met them. The complainant has narrated the incident and also produced lock, iron rod and screw driver before him. Statement of complaint was recorded on which endorsement Ex.PW4/B was Rashid Vs. State - CA No. 107 of 2019 6 of 16 made and sent to PS through PW2 for registration of case upon which FIR was registered. PW2 came back after registration of case with copy of FIR and tehrir. Site plan Ex.PW1/B was prepared at the instance of complainant. The appellant was arrested whose personal search and arrest memos Ex.PW2/A & B were prepared. Lock, iron rod and screw driver were taken into possession vide memos Ex.PW1/C & D. The disclosure statement Ex.PW4/C was recorded. Four pointing out memos Ex.PW2/C to F were prepared on the basis of disclosure statement of the appellant. The coaccused were searched but in vain. Statements u/s 161 Cr.PC were recorded. He has identified the appellant. During cross examination he stated that the appellant was apprehended at the house of the complainant. The appellant has broken the lock of the main gate of the boundary as well as house of the complainant. He has tried to inquire from the public persons but no one has disclosed his identity. He has not inquired Rashid Vs. State - CA No. 107 of 2019 7 of 16 from the guard about the incident. The suggestion is denied that no such incident has taken place that is why no inquiry was done from the guard or that articles are planted on the appellant or public persons were not associated as no such incident has taken place.
11 PW2 HC Mahesh has corroborated the version of PW4 and identified the appellant and case property i.e. lock, iron rod and screw driver Ex.P1.
12 Ld. Counsel for the appellant submitted that there is no evidence on record that appellant has entered inside the house of the complainant or appellant was trying to lift the articles belonging with the complainant. He further submitted that there is no evidence on record that appellant has attempted to commit theft from the dwelling house. He further submitted that no public person was associated despite the fact that the appellant was apprehended with the help of public persons which calls for an Rashid Vs. State - CA No. 107 of 2019 8 of 16 adverse inference against the prosecution. He further submitted that testimony of complainant cannot relied upon in the absence of corroboration from the independent witnesses. 13 Ld. Addl.PP for the State submitted that testimony of PW1 has gone unrebutted on the material points of the case. He further submitted that testimony of complainant cannot be discarded merely on the ground that public persons were not associated by the police.
14 Heard and perused the record.
15 Section 443 IPC says that a person is said to have committed lurking house tresspass when he has taken precautions to conceal such house tresspass from such person who has a right to exclude or eject the tresspasser from the building, tent or vessel which is subject of the tresspass.
16 The lurking house tresspass or house breaking is covered u/s 454 IPC.
Rashid Vs. State - CA No. 107 of 2019 9 of 16 17 PW1 is the complainant. PW2 & 4 have carried out the investigation of the case. 18 The testimony of PW1 clearly shows that he
alongwith his family has been residing in the house in question. No question or suggestion is put to him that the does not reside in the house in question. His testimony to this effect has gone un rebutted. It shows that PW1 is residing in the house in question. The testimony of PW1 further shows that he has gone out after locking the house at 12:30 PM and came back at 06:00 PM. The testimony to this effect has gone unrebutted meaning thereby that he has put the lock on the main gate as well as on the inner door of the house.
19 The testimony of PW1 shows that he came back at 06:00 PM and saw that lock of the main gate was broken and gate is lying open. He went inside and saw that appellant alongwith others was breaking the lock of the house. No question or Rashid Vs. State - CA No. 107 of 2019 10 of 16 suggestion is put to him by the appellant that he alongwith others was not present on the spot i.e. near the inner door of the house. It shows that he has admitted his presence on the spot. No question or suggestion is put to him by the appellant that he has not broken the lock of the main gate of the house. No question or suggestion is put to him by the appellant that he alongwith others was not breaking the lock of the inner door of the house though he has denied the suggestion that no such incident has taken place. His testimony on the material points has gone unrebutted. 20 The testimony of PW1 further shows that appellant alongwith others fled from the spot upon which he chased the appellant who was apprehended by him alongwith public persons in the Central Park in the society. No question or suggestion is put to him by the appellant that he has not fled from the spot or he was not apprehended from the Central Park.
Rashid Vs. State - CA No. 107 of 2019 11 of 16 21 The defence of the appellant is that he had a quarrel
with the complainant when they were seeing the burning of effigies in the Central Park of the society. It is for the appellant to prove his defence. The defence is not reliable. He has not given any reason of his alleged quarrel with the complainant. The appellant has failed to explain why he has gone to see the burning of effigies at Kalkaji from Jahangir Puri i.e. his place of residence. The statement u/s 313 Cr.PC shows that he has come to the place of his relative at Kalkaji. His defence is inconsistent. He has not disclosed the name of his relative for the reason best known to him. His defence is just for the sake of his defence otherwise it is devoid of any merits.
22 His defence shows that he was at Central Park of the society. The testimony of PW1 shows that appellant was apprehended by him at Central Park. It shows that PW1 has rightly given the place apprehension of the appellant.
Rashid Vs. State - CA No. 107 of 2019 12 of 16 23 Iron rod and chenni alongwith broken locks were
found on the spot. The iron rod and chenni are used to break open the lock of the house.
24 The other point raised by the appellant is that no public person has been associated as such testimony of PW1 does not inspire confidence. The testimony of PW1 is consistent without any major contradiction on record. The appellant was not known to the PW1 prior to the incident. PW1 has no enmity or illwill with the appellant. He has no motive to implicate the appellant. No evidence is brought on record by the appellant to show that he has been falsely implicated. The non association of public persons, in such circumstances, does not affect that testimony of PW1.
25 The entire evidence on the file shows that the appellant has committed house breaking in the house of the complainant by breaking the lock of the main gate of the house Rashid Vs. State - CA No. 107 of 2019 13 of 16 and thereafter, tried to commit theft in the house of complainant by breaking the lock of the inner door of the house. The testimony of PW1 is consistent to this effect which is relied upon.
26 Ld. Trial Court has properly appreciated the facts and evidence on record.
27 I do not find any infirmity in the judgment dated 17.01.2019 passed by Ld. Trial Court. The same is upheld. 28 Ld. Counsel for the appellant submitted that appellant is 27 years old. He further submitted that appellant is a married person who has two children. He further submitted that the appellant is first and young offender so lenient view be taken in his favour.
29 Ld. Addl. PP for the State submitted that Ld. Trial Court has already passed the appropriate sentence and there is no ground to take any lenient view.
Rashid Vs. State - CA No. 107 of 2019 14 of 16 30 Heard and perused the record. 31 The appellant is a first and young offender as there is
nothing on record to suggest his previous conviction. The appellant has two children. The family of the appellant will be affected in case of harsh punishment. Keeping in view all these facts, the sentence imposed upon the appellant is modified. 32 The appellant is sentenced to undergo RI for 9 months with fine of Rs.1,000/ u/s 454 IPC and in default of payment of fine to undergo SI for one month and sentenced to undergo RI for 9 months with fine of Rs.1,000/ u/s 380/511 IPC and in default of payment of fine to undergo SI for one month. Both the sentences shall run concurrently. Benefit of section 428 Cr.PC is granted to him. Fine is not paid.
33 The appeal filed by the appellant is accordingly disposed of.
Rashid Vs. State - CA No. 107 of 2019 15 of 16 34 The appellant is taken into custody to serve the
sentence as modified by this court. His custody warrant be prepared.
35 Attested copy of the judgment be supplied to the appellant free of cost.
36 TCR alongwith copy of judgment copy of the judgment be sent to the Ld. Trial Court.
37 Appeal file be consigned to record room.
announced in the open court on 10th May, 2019 (SURESH KUMAR GUPTA) Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, Saket Courts, New Delhi Rashid Vs. State - CA No. 107 of 2019 16 of 16