Delhi District Court
State vs . Mohd. Sahid & Ors. on 2 January, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
FIR No. : 31/04
PS : Preet Vihar
Offence complained of : 454/380/34 IPC
Date of commission of offence : 1718.01.2004
Unique Case ID No. : 02402R0024922005
STATE Vs. Mohd. Sahid & Ors.
1.Mohd. Sahid S/o Shahbuddin R/o B33, Gali No. 6, Old Brij Puri, Delhi.
2. Mohd. Yamin S/o Hussain Bax R/o 31 A, Gali No. 6, Old Brij Puri, Delhi.
3. Shahbuddin S/o Abdul Wahid R/o B33, Gali No. 6, Old Brij Puri, Delhi.
4. Shahzad S/o Shahbuddin R/o B33, Gali No. 6, Old Brij Puri, Delhi.
5. Irshad S/o Zafar Ali R/o C34, Jawahar Mohalla, Patparganj, Delhi.
6. Nadim S/o Mohd. Yamin R/o 31 A, Gali No. 6, Old Brij Puri, Delhi.
............. Accused persons Sartaz Ahmed S/o Sh. Bashir Ahmed R/o B32, Gali No.5, Old Brijpuri, Delhi.
............. Complainant
Date of Institution : 25.01.2005
Plea of accused : Pleaded not guilty
Date of pronouncement : 02.01.2013
Final Order : Acquitted
Page No. 1 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E)
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on the intervening night of 17 18.01.2004 at H. No. B32, Gali No. 5, Old Brijpuri, Delhi, falling within the jurisdiction of Police Station Preet Vihar, all the accused persons in connivance with each other entered the house of complainant Sartaz Ahmed by breaking open the back side wall of the said house and committed theft of several items belonging to the complainant as mentioned in the complaint. Thus, all the accused persons are alleged to have committed offences punishable u/s 454/380/34 IPC.
FIR On the basis of the said facts and on the complaint of the complainant Sartaz Ahmed, an FIR bearing number 31/04 was lodged at Police Station Preet Vihar on 20.01.2004.
CHARGE After investigation, chargesheet under section 173 Cr.P.C was filed on 25.01.2005.
Accused persons were summoned to face trial and they were supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the chargesheet, a Charge for the offences punishable under section 454/380/34 IPC was framed against all the accused persons and read out to the said accused persons, to which the accused persons pleaded not guilty and claimed trial on 26.07.2006.
LEGAL REQUIREMENT The allegations against the accused persons are under section 454/380/34 of the IPC, i.e, committing theft of items as mentioned in the complaint. Page No. 2 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) In order to prove the allegations of offence punishable under section 380/34 IPC, the prosecution need to prove the following essential ingredients :
1. That the accused had dishonestly taken the property/ articles.
2. That the property was movable.
3. That the property was taken out of the possession of another person/complainant.
4. That it was taken without the consent of that person/ complainant.
5. That there must be some moving of the property in order to accomplish the taking of it.
6. That the theft was committed in a dwelling house/ building.
7. That the said act was committed in furtherance of common intention of the accused persons.
In order to prove the allegations of offence punishable under section 454/34 IPC, the prosecution need to prove the following essential ingredients :
1. That the accused persons entered into or upon property in the possession of another.
2. That such entry was with an intent to commit an offence or to intimidate, insult or annoy any person in possession of the property.
3. That such entry is with respect to a building, tent or vessel used as human dwelling or any building used as a place for worship or as a place for the custody of property.
4. That such entry was made by opening any lock or by creating any passage which was not intended by the occupier of the house to be created, in order to the committing of the house trespass in order to commit theft.
5. That the said acts were committed in furtherance of common intention of the accused persons.
PROSECUTION EVIDENCE In order to prove the above said allegations, the prosecution has examined eight witnesses namely Complainant Sartaz Ahmed as PW1, Anil Kumar as PW2, HC Mahesh Chand as PW3, Mohd. Ayub as PW4, HC Vijender Singh Page No. 3 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) as PW5, ASI Lalji Tiwari as PW6, Alimuddin as PW7 and ASI Jai Kishan as PW
8. PW - 1 Sartaz Ahmed is the complainant and the victim of the alleged offences and he deposed that he was a tenant in H. No. B32, Gali No. 5, Old Brij Puri, Delhi since 1990 and that accused Shahbuddin is the owner of said premises. Since, 2003 accused Shahbuddin and his sons Shahid and Shezad used to harass him in order to force him to vacate the aforesaid premises and also threatened him that they would get it vacated forcibly. That on 14.01.2004 his wife and children had gone to Old Seema Puri and on 17.01.2004 he also went there to take his wife and children and on the same night at about 11:30 PM he received a call from Mohd. Ayub that some noises were coming from the first floor of tenanted premises. Upon receiving the said information, he immediately reached his house and found all the accused persons present in his house. He also found that accused persons had removed the common wall of the house which was adjacent to his room and that said adjacent premises was occupied by his landlord Shahbuddin. He also found his house hold articles like Single Bed, Iron Almirah, Two Coolar, Sofa Set, Two Chairs, Two Iron Boxes, Bakery Items, Jewellery and cash Rs.25,000/ and some electronic items missing as they were removed by the accused persons. He further deposed that he made a call at 100 number, but by the time police reached the spot, accused persons had left. His statement in this regard was recorded by the police which is Ex. PW1/A and none of the articles were recovered.
Another material witness is PW4 Mohd. Ayub who deposed that on 17.01.2004 he was working as Mistri in the Bakery of Sartaz Ahmed at B32, Gali No. 5, Brijpuri, Delhi. On that day Sartaz was not present at his house and the house was locked at about 11:30 PM he heard some noise of "Tor for" from the Page No. 4 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) building and he immediately called Sartaz Ahmed who came at the spot and informed police after which police also reached the spot. This witness was cross examined by Ld. APP for state and he admitted that on the said day the accused persons were present at the spot and had taken possession of house of complainant by breaking the wall of the house and had also stolen the goods lying there.
The last public witness is PW7 Alimuddin who deposed that Sartaz was running a bakery at Gali No. 5, Old Brijpuri but he knew nothing about the alleged incident and never heard about any quarrel or theft in the house of complainant. The witness denied that on 17.01.2004 he had heard some noise coming from the house of complainant at about 11:30 PM and that the accused persons had taken possession of the house of complainant by breaking open the back side wall of the house. Thus, this witness turned hostile and failed to support the story of prosecution.
PW - 5 HC Vijender Singh and PW - 6 ASI Lalji Tiwari deposed that on 19.01.2004 PW6 had received DD No. 56 B and that he also visited the spot but the same was kept pending and on 20.01.2004 he again visited the spot and recorded statement of complainant Sartaz Ahmed Ex. PW1/A and got the FIR registered after which he went to the spot. That PW5 along with the FIR and original rukka went to the spot and handed over the same to him and PW6 prepared site plan at the instance of complainant which is Ex. PW6/A and he also recorded the statement of witnesses and search for the accused persons. PW6 also arrested accused Shahid vide memo Ex. PW5/A, conducted his personal search vide memo Ex. PW5/B and recorded his disclosure statement Ex. PW5/C in the presence of PW5. He had also arrested accused Yamin vide arrest memo Ex. PW6/B. Page No. 5 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) PW - 2 Anil Kumar is a photographer who deposed that he went to the street No. 5, Old Brij Puri along with complainant and took photographs of the house hold articles and on the ground floor premises and after developing the prints, same were handed over to the Sartaz. The photographs are Ex. PW2/A1 to A6.
PW - 3 HC Mahesh Chand is a duty officer who deposed that on 20.01.2004 at about 4:05 PM he received rukka from Ct. Bijender sent by ASI Lalji Tiwari and on the basis of the same he recorded the FIR and the carbon copy of the same is Ex. PW3/A. He further deposed that he also made an endorsement Ex. PW3/B. PW - 8 ASI Jai Kishan is a formal witness who deposed that on 02.08.2004 investigation of this case was marked to him and that on 30.09.04 accused Shahbuddin, Shahzad, Irshad and Nadeem came at PS and he arrested them vide arrest memos Ex. PW8/A, PW8/B, PW8/C and PW8/D respectively and released them on bail as they produced anticipatory bail order.
All the witnesses were cross examined at length by Ld. Counsels for the accused persons and the same has been discussed later in judicial resolution.
On 14.09.2012 statement of all the accused persons were recorded u/s 313 Cr.PC. separately wherein they denied the allegations of prosecution and claimed innocence and stated that they have been falsely implicated in the present case by the complainant as there is litigation between Mohd. Sahid and the complainant. Accused persons wanted to lead evidence in their defence, however, no DW was produced on 06.10.12 and on 08.11.12 the accused persons declined to lead DE and DE was closed.
I have heard the Ld. APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law. Page No. 6 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) JUDICIAL RESOLUTION As stated earlier the accused persons have been charged for offence under section 454 and 380 of IPC read with section 34 of the IPC.
The prosecution in order to prove the said charges cited seven public witnesses and five police witnesses in the list of witnesses. However, three public witnesses i.e., Ikramuddin, Waseem and Mobin Ahmed could not be examined in the present case as they were not traceable. Four public witnesses have been examined of which complainant namely Sartaz Ahmed has been examined as PW
1. Thus, the testimony of this witness is very important and crucial for this case.
Firstly, coming to the offence of trespass, it has been alleged that the accused persons had broken the back side wall of the room in the possession of the complainant and trespassed into it.
As regards this fact neither the complainant nor PW4 Mohd. Ayub and PW7 Alimuddin are eye witnesses as none of these witnesses stated that they had seen the accused persons breaking the wall of the room in possession of the complainant. PW4 Mohd. Ayub admitted in his crossexamination that "It is correct that I did not see anybody breaking anything or beating anybody or taking away any goods". PW7 had deposed that "I have never heard about the quarrel and theft at the house of Sartaz" and he stated in his cross by Ld. APP that "I do not know that the worker of Sartaz informed to him on telephone and he came there and checked his house and found that landlord Shahbuddin and his sons namely Shahid, Shahzad, Yamin, Nadeem, Irshad and one other person, relative of Shahbuddin had broken the back side wall of the house and took possession of the said house".
Page No. 7 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) Even the complainant has nowhere stated that he had seen the accused persons either breaking the wall or committing theft of his articles as he merely stated that "On receipt of this information I reached at my said tenanted house and found that all the accused persons present in the court today were present in my room and they removed the common wall of the house which was adjacent to my room and the said adjacent premises was occupied by my landlord............. By the time I reached in my house, I found wall was removed and all the house hold goods like Single Bed, Iron Almirah, Two Coolar, Sofa Set, Two Iron boxes of medium size containing clothes, two chairs and bakery items amounting to Rs.20,000/, Jewellery of my wife, Cash Rs.25,000/, VCR make sony had also been removed from my house by the accused persons". Thus, though it is stated that when the complainant reached his house, he found the accused persons present there, there is no evidence that anyone saw the accused persons breaking the wall of the room which was allegedly in his possession. Moreover, the court has also gone through the photograph which are on record which is Ex. PW 2/A1 to A6 and found that from the photographs it is not visible that the wall was broken by someone, rather, it seems that the door has been carved out and properly so, as plaster and white wash is clearly visible in photographs.
As regards theft of articles stated by the complainant, none of the said articles could be recovered from the possession of the accused persons or at their instance and no prosecution witness deposed that he had seen the accused persons taking all or any of the goods. Thus, as regards theft there is absolutely no evidence on record to prove the allegations against the accused persons.
As far as the allegations of trespass is concerned, the testimony of PW1 Sartaz Ahmed is not reliable for conviction of accused persons for two reasons : Firstly, because there is landlord tenant dispute between the complainant Page No. 8 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) and the accused persons as testified by the complainant in his examination in chief and secondly, because in the civil suit for permanent injunction filed by the complainant on 19.01.2004 nowhere mentioned about the alleged theft as well as alleged trespass. Certified copy of the plaint of said civil suit was put to the complainant in his crossexamination and he admitted the same as Ex. PW1/DA. The said plaint refers to an incident of 17.01.2004 in following words :
"That on 17.01.2004 in the evening, the defendant came with his henchmen and he threatened to take the law into in his own hands he wanted to take forcible possession from the plaintiff, but he could not succeed and when he was leaving the spot he threatened that he will come with gundas and bad elements and will throw the plaintiff and their luggage out of the house in question as the defendant to willing to sell the said property and defendant refused to withdraw his threats".
The said para 9 of the plaint Ex. PW1/DA is entirely contradictory to the testimony of complainant as PW1 and also contradictory to the allegations made by the complainant in his complaint Ex. PW1/A on the basis of which the present FIR was registered. As per the complaint Ex. PW1/A and the testimony of the complainant, the complainant was not present at his house in the evening of 17.01.2004 as he had gone to his inlaws house to take his wife and children. He came back to his house on 17.01.2004 only after he received a call from Mohd. Ayub at 11:30 p.m. Thus, as per the testimony of complainant, he was not present in his house in the evening of 17.01.2004, though as per para 9 of the plaint Ex. PW1/DA some of the accused persons had threatened him at his house in the evening of 17.01.2004.
While in the plaint he stated that some of the accused persons left his house after threatening him that they would take forcible possession of his property, as per his testimony as PW1 they had taken forcible possession of the room by Page No. 9 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E) breaking the wall of the room.
Further, it is found that in para 9 of the plaint there is absolutely no mention of the theft of articles of the complainant and there is also no mention of breaking of the wall of the room of the complainant by accused persons.
In the opinion of the court, all these contradictions and lacunas are sufficient to raise serious doubt in the mind of the court as regards the allegations made in the complaint/ FIR and sufficient to reach a conclusion that the prosecution has failed to prove the charges u/s 454/380/34 of IPC against any of the accused persons.
Accordingly, all the accused persons namely Mohd. Sahid, Mohd. Yamin, Shahbuddin, Shahjad, Irshad and Nadim are acquitted.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bonds and the surety bonds of all the accused persons as well as sureties shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 02.01.2013.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 02.01.2013 Certified that this judgment contains 10 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 02.01.2013 Page No. 10 / 10 FIR No. 31/04 State Vs. Mohd. Sahid & Ors. S.P.S. Laler, MM06(E)