Delhi District Court
3.Title State vs . Pradeep @Bunty on 3 April, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
.......__ KARKARDOOMA COURTS, DELHI
1. FIR 0. 06/2000, PS Bhajanpura
2.Unique Case no. 460454/2015
3.Title State Vs. Pradeep @Bunty
3(A).Name of complainant Sh. Chatter Pal Singh
S/o Sadan Singh
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Rio H. No. A-35, Police Colony, PS
Bhajanpura
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3(B).Name of accused Pradeep @ Bunty
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S/o Sh. Brahm Pal
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Rio H. no.
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4.Date of institution of 07.04.2001
I chargesheet
5.Date of Reserving judgment 23.03.2023
6.Date of pronouncement 03.04.2023
7.Date of commission of offence Intervening night of 02/03.01.2000
8.Offence complained of U/s 457/380 IPC
9.Offence charged with U/s 457/380 IPC
IO.Plea of the accused Pleaded not guilty.
I I .Final order Acquitted
12. Date of receiving of judicial 07.04.2001
file in this court
Argued by :- 1. Sh. A. Samani, Ld. APP for the State.
2. Sh. Sunil Kumar Singh, Ld. Counsel for accused.
JUDGMENT
I. The present prosecution case was put into action with the complaint of the complainant, Chatter Pal Singh stating that on 0 1.01.2001, he had gone to Hathras by putting lock on his quarter assigned to him i.e. A-35, Police Colony, State Vs. Pradeep@ Runty Page 1 of 17 FIJ ;7purn • PS Bhajanpura. However, on returning on 03.01.2000 at around 06 .00 P-lll., he found that the lock on the main door was broken. On entering the house, he . h's door was open as well as broken. On query fr om h.is at the almira · Prahl ad, he was informed that a person namely, Bunty had come to eighbour n his house on the night on 02.01.2000 who had stated himself to be brother of the comp 1aman . t· He was further informed by his neighbour Prahlad that the said Bunty stated that he is not carrying the keys of the aforesaid house and there1ore, despite the refusal of Prahlad, he broke open the lock and entered the house. Further, Prahlad stated that he was not aware when the said Bunty left the house. Complainant on checking his house found that several articles were missing from his house including Rs. 36,000/- cash. Therefore, he filed a complaint with PS Bhajanpura as he has no brother by the name of Bunty. However, he suspected that his nephew's friend Bunty might be the one who would have done so. On the basis of the complaint, FIR bearing no. 6/2000; PS Bhajanpura was registered u/s 457/380 IPC. However, accused remained untraceable during the stage of investigation. Hence, he was declared absconder by the Ld. Predecessor of this Court. Thereafter chargesheet was filed in the court after completion of investigation.
2. On 07.04.2001, Ld. Predecessor of this court, took cognizance and fixed the matter for PE under Section 299 Cr. PC. Therefore, PW 1 HC Prem Singh and PW 2 Chatter Pal Singh were examined under Section 299 Cr. PC. File was thereafter, consigned to record room. Subsequently, however, accused was apprehended. Thereafter, copy of chargesheet was supplied to him on 09.12.2002. Then, on 09.09.2003, charge was framed agams · t the accused for offence under Section 457/380 IPC. He pleaded not gm·1ty and claimed trial. Matter was re-listed for Prosecution evidence.
· 3 · Prosecution had named 10 witnesses in total. HC Prem s·ngh 1 was examined t State Vs. Pradeep @Bunty PSBha pura Page 2 of 17 FIR as PW 1. He is the Duty Officer. He deposed that on 05.01.2000, at around 07.05 p.m, SI Jitender handed him the rukka on the basis of which he registeJ ed FIR no. 6/2000 under Section 457/380 IPC. Copy of FIR is Ex. J II pf 1! (OSR). He also made endorsement on the rukka which is Ex. PWl/B.
4. Sh. Chatter Pal Singh was examined as PW 2. He has deposed that on 01.01.2000 he alongwith his wife and children went to Aligarh UP after locking the house i.e. A-35, Police Colony, PS Bhajanpura. However, after two days, when they returned back, he found that the lock of the main gate was broken. Further he stated that the lock of the almirah was also broken and the almirah was open. He further deposed that on inquiry from his neighbour Prahlad, his neighbour Prahlad told him that a person namely, Bunty who is the friend of his nephew came in his house on the previous night after consuming liquor and the said person broke open the lock of the main gate. He further stated that he was informed by his neighbour that the Bunty had stated himself to be son of uncle of the complainant. The said Bunty further stated that he had lost the key of the house and would stay for the whole night. But his neighbours refused Bunty to stay in the said house as he was not known to them. But thereafter, with the concurrence of other neighbours, complainant stated that his neighbour Prahlad allowed the said Bunty to stay in his house for one night as he was stating himself to be the cousin brother of the complainant. PW Chatter Pal further deposed that on the next morning his neighbour found that the said boy Bunty was not present in the house and all the items in the house were scattered. Thereafter the said neighbour shut the main gate of the house and on evening when he returned, PW 1 found that Rs. 36,000/-, one Kodak Camera, Woodland stereo, Phillips press, two gold chains, one pair of earrings, two pair of silver chains, three silver coins, twelve sarees and other articles were missing from his house. Hence, he made complaint Ex. PW2/A in this respect. He further stated that he alongwith police official State Vs. Pradeep @Bunty Page 3 of 17 FIR . 6/2000, PS B · ura ' 1Jf7 visited the village of accused Bunty but the accused was not found nor the stolen articles were recovered. He further stated that the broken lock of the I t . main fate was seized by the police and the site plan was prepared at his 1ffs¥Jnfeby the police. The said examination in chief of the witness was done under Section 299 Cr. PC Thereafter, the accused was apprehended and the witness was recalled for further examination on 17.02.2017. The witness correctly identified the accused present in the Court ( the case property (i.e broken lock) was not disputed by the accused as the same had already been deposited with the District Nazir Tis Hazari vide RC No. 139/21 on 24.12.2003). Despite opportunity, PW 2 was not cross examined. Hence, right to cross examine PW 2 was closed. But subsequently vide order dated 11.12.2019, accused was granted opportunity to cross examine PW 2 subject to cost which he paid. Thereafter, on 03.02.2023, PW 2 was cross examined by the accused wherein he stated that he knows accused B unty as he used to work with his nephew and also visits his house along with his nephew. He denied the suggestion that the accused has been falsely implicated in the present matter in view of business dispute between his nephew and accused Bunty. He admitted that his neighbour Prahlad Singh had told him that accused Bunty has broke open the lock of the house and he himself had not seen the same.
5. Sh. Prahlad was examined as PW 3. He has deposed that on 01.01.2000, his ' neighbour Chattarpal had gone to his native village. On 02.01.2000, at about 09.00 p.m. to 09.40 p.m., a person came to his quarter and introduced himself as brother of Chatter Pal. He further stated to him that he does not have key of the said quarter of Chatter Pal. PW 3 further deposed that he had seen the said boy namely, Bunty with Chatter Pal 2-3 times. Thereafter, the said Bunty broke open the lock of quarter of Chatter Pal in his presence despite his objection. He further stated that he does not know when the said boy had left the house of Chatter Pal. PW 3 further stated that on 03.01.2000, when Chatter Pal returned State Vs. Pradeep @ Bunty Page 4 of 17 to his quarter, he stated to him that goods from his house had been stolen and thereafter, he informed them about the visit of Bunty. He further stated that accusi -was neither arrested in his presence nor any recovery was made from fiirihnhis presence. He further stated that he can identify the accused Bunty, if shown to him (identity of accused was not disputed). In his cross examination, he stated that complainant Chatter Pal was known to him for past 10-12 years. He further stated that the house of complainant Chatterpal is just I opposite to his house and if the gates of both the houses are open then the i person coming/going in either house can be seen from other house. He further stated that Chatter Pal had not given him the keys of his house. He conceded that he cannot tell at what time the theft took place in the house of the Chatter Pal. He stated that he came to know about the incident only after the Chatter Pal came to his house.
6. Ct. Dev Dutt was examined as PW 4. He has stated that on 05.01.2000, DO handed him carbon copy of FIR already Ex. PWl/A and rukka already Ex. PWl/B and handed over to ASI Jitender after taking it to the spot i.e. A-35, quarter PS Bhajanpura, Delhi. He further stated that one lock was produced by the complainant which was sealed by the IO in a white pulanda with the seal of AKS vide seizure memo Ex. PW4/A ( the said case property has already been deposited with District Nazir,Tis Hazari on 24.12.2003 vide RC no. 139/21). In his cross examination, he stated that he had signed the seizure memo.
7. Sh. Gyanender was examined as PW 5. He is the nephew of the complainant and has stated that he was residing with his maternal uncle namely, Chatterpal Singh at A-35, Bhajanpura about 8 years back. He further stated that he was working at Jean factory, Maujpur at the said time and accused Bunty (correctly identified by him) was also working with him. He State Vs. Pradeep @ Bunty Page 5 of 17 further stated that ac~used Bunty also used to visit the house of his uncle with him. He stated that his mama (complainant) had informed him that Bunty had 7i, 7 b~oke( the ~oc~s of his house and committed theft of various articles. In his cross exammation, he admitted that the incident had not occurred in his presence. He denied the suggestion that he was not residing with his mama.
8. SI Ajit Malik was examined as PW 6. He has deposed that on 04.04.2000, he took the NBWs of the accused Pradeep @Bunty from the court of the then Ld. MM. Then on 08.04.2000, raid was conducted at the native place of accused Pradeep @ Bunty at village Azampur, District Meerut, UP. Then, on 20.04.2000, he took process under Section 82 Cr. PC against the accused as NBWs were remained unexecuted on 30.05.2000, accused Pradeep @ Bunty was declared absconder by the Court. He was not cross examined by the counsel for accused despite opportunity was being given.
9. Inspector Sh. J. K. Singh was examined as PW 7. He has deposed that on 05.01.2000, while he was posted at PS Bhajanpura, complainant Chatterpal Singh came to the PS and he recorded his statement already Ex. PW2/A. On the said tehrir, he prepared ruk:ka Ex. PW7/A and handed over the same to the Duty Officer for registration of FIR. He prepared site plan Ex. 7/B at the instance of complainant Chatterpal. Further at the spot, he found one broken lock which was seized by him vide seizure memo Ex. PW 4/A. In the meantime, Ct. Dev Dutt returned to the spot alongwith original ruk:ka and copy of FIR. Thereafter he recorded supplementary statement of complainant Chatterpal and Ct. Dev Dutt. He further stated that he also inquired from Prahlad and recorded his statement under Section 161 Cr. P. C. He deposited the case property in the malkhana. In his cross examination, he stated that complainant Chatterpal had not submitted any bills regarding the stolen articles. He denied the suggestion that accused has been implicated falsely in State Vs. Pradeep @ Bunty Page 6 of 17 FIR No. t hajanpurn the present matter.
10.ASI Mange Ram was examined as PW 8. He has stated that on 29.05.2000, J 7 5 a¼er ! taining permission for proceedings under Section 83 Cr. PC, he went to the address of the accused but the said process remained unexecuted as there were no movable or immovable properties of the accused. His report in this regard was Ex. PW8/A. He was not cross examined by the Ld. Counsel for the accused despite the opportunity was being given.
11.HC Subhash was examined as PW 9. He has deposed that on 30.04.2000, he had executed process under Section 82 Cr. PC against the accused and the proclamation is Ex. PW9/A and the report of its execution is Ex. PW9/B. He was not cross examined by the Ld. Counsel for the accused despite the opportunity was being given.
12. MHC(M) was not examined as the identity of the case property i.e. broken lock was not disputed. Thereafter, prosecution evidence was closed and statement of accused under Section 313 Cr. PC r/w Section 281 of Cr. PC was recorded. Accused denied the allegations against him due to dispute between him and his friend Sonu. Accused choose to lead defence evidence.
13. Smt. Mithlesh was examined as DW 1. She has stated that Vikram Kaur i.e. mother of accused Pradeep @ Bunty had good relation with sister of complainant. She further stated that Pradeep @ Bunty and Chatter Pal were having cordial relationship and used to do business together. She again said that Sonu i.e. nephew of Chatterpal and Pradeep used to do business together. Due to financial loss in his business, Chatterpal has falsely implicated Pradeep @ Bunty in the present matter. In her cross examination, she stated that Sonu and Pradeep used to do business of Jeans. She further stated that about I State Vs. Pradeep @ Bunty Page 7 of 17 FIRN~ rn month, prior to the filing of the present case, there were hot conversation t between Sonu and Pradeep regarding their business. She denied the suggeS ion lttll I' , that sht is deposing falsely in order to protect her relative i.e. the accused.
14. I have heard the submissions of both the parties and perused the material on record. The Id. APP for State argued that the ·t estimony of the witne?ses 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.
15. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law. I shall first deal with allegations pertaining to theft and thereafter with the allegations with respect to house trespass. 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 /PC: 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 /PC: Theft in dwelling house, etc.-Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as human dwelling, or used for the custody of property, shall be punzshed with imprisonment of either description for a term which may extend to seven years, and shall also be liable tofizne. F
16. From the aforesaid definition it is clear that the essent1·a 1 mgre . d"1ents o f theft are:
a) Moving of moveable property out of possession of a person
b) Absence of consent of the person i,
c) Dishonest intention in so moving and at th e t.1me o f movmg . I "State Vs. Pradeep @ Bunty Page 8 of 17
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17. 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 d .Z ur q;~I §@Wso 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 Monda/ (1890) lLR 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 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 i.e. one camera Kodak, one iron press Philips, one gold chain embedded with locket, four gold bangles, one ring ladies and one ring gents, one pair of earrings gold, one pair of kundal, one long nosepin, one pair of silver anklets, one silver guchcha {key chain), two pairs of bichua, one neck garland two silver chains, three silver coins, 12 sarees, one winter suit fabric, one jacket, one car stereo & Rs. 36, 000/- of the complainant Chattar Pal Singh out of his possession
b) Such moving was without consent of Chattar Pal Singh
c) Accused had dishonest intention in such moving
d) Articles were moved out of dwelling house of complainant i.e. A-
35, Police Colony, PS Bhajanpura
18. Now, PW 2 in his testimony has stated that on 03.01.2023, when he returned to his house, he found that Rs. 36,000/-, one Kodak Camera, Woodland stereo, Phillips press, two gold chains, one pair of earrings, two pair of silver chains, three silver coins, twelve sarees and other articles were missing from his house. Further, he has deposed that he was informed by his neighbour PW3 Prahlad State Vs. Pradeep@ Bunty Page 9 of 17 FIR No. 6/200 that on the previous night, Accused Bunty had come to his quarter and left the next morning. Hence, he suspected that accused Bunty had removed the said articlp, Thus, PW 3 is the star witness of the prosecution. Testimony of PW 2 • rs ikafsay evidence based upon what was informed to him by PW Prahlad. In his testimony, he has deposed that on 03.01.2000, when Chatter Pal returned to his quarter, he stated to him that goods from his house had been stolen and thereafter, he informed them about the visit of Bunty. But he conceded that no recovery was made from accused in his presence. He also conceded that he did see accused leaving the house. He even conceded in the cross examination that he cannot tell at what time the theft took place in the house of the Chatter Pal. Moreover, he stated that he came to know about the incident only after the Chatter Pal came to his house. Thus, from his testimony, it is clear that there are material holes in prosecution version and there is no direct evidence of theft. In appreciating a case based on circumstantial evidence, it is well settled that one circumstance by itself may not unerringly point to the guilt of the accused and it is the cumulative result of all the circumstances which are to be seen. Thus, there must be a chain of evidence where no reasonable ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused. In Bodh Raj V. State of Jammu & Kashmir AIR 2002 SC 3164, Apex Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fitlly proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency
d) That the circumstances should, to a moral certanity , actually exclude every hypotheis expect the one proposed to be proved.State Vs. Pradeep @ Bunty Page 10 of 17
FIRNo~ a
19. But in the present matter, there are several missing links. No recovery has been made from the accused. Further, prosecution has not filed any bills on recordi(o show that the complainant was actually in possession of one camera a fJ§l\t one iron press Philips, one gold chain embedded with locket, four gold bangles, one ring ladies and one ring gents, one pair of earrings gold, one pair of kundal, one long nosepin, one pair of silver anklets, one silver guchcha (key chain), two pairs of bichua, one neck garland two silver chains, three silver coins, 12 sarees, one winter suit fabric, one jacket, one car stereo on the date of incident. No source of Rs. 36,000/- cash has been disclosed. Rs. 36,000/- in the year 2000 was a huge amount. It is pertinent to note that the complainant/PW2 has deposed that his house is on the first floor. If accused moved so many articles out of the dwelling house of complainant, then any one of the neighbours of the complainant would have noticed while moving the aforesaid articles downstairs from the first floor. But PW3 Prahlad categorically stated that he did not see the accused leaving even though it is admitted by PW3 in his cross examination that house of complainant Chatterpal is just opposite to his house and if the gates of both the houses are open then the person coming/going in either house can be seen from other house. Further, PW2 has deposed that many other neighbours had also gathered when accused was entering his house and the said fact was informed to him by PW3 Prahalad. But none of the said neighbours were made a witness by the r prosecution who could have corroborated PW3. It is a settled proposition of I criminal law that prosecution is supposed to prove its case on judicial file r beyond reasonable doubt by leading reliable, cogent and convincing evidence.
In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses , if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. It is for the prosecution to travel the entire State Vs. Pradecp @ Bunty Page 11 of 17 No. 6/2000, P ura L distance from the accused "may have" to accused "must have" committed the offence. But in the present case, even if the facts deposed by PW2 and PW3 are admitted as true, the circumstances are not of conclusive nature and tendency J~inttlk towards the guilt of accused. Existence of articles alleged to have been stolen by·the accused from possession of comlainant remains unproved. Hence, I find that the prosecution fails to prove moving of articles from the dwelling house of complainant. it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted. There is not a single document on record to show that complainant was ever in possession of the articles alleged to have been stolen by accused. Accordingly, prosecution fails to prove ingredients for the offence punishable under section 380 IPC.
20. Now movmg to the charge 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 ofproperty, is said to commit "house-trespass".
Explanation. The introduction of any part of the criminal tres- passer 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"
State Vs. Pradeep @Bunty Page 12 of 17 t /2000, PS Bhajanpura
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".
k 457. Lurking house-trespass or house-breaking by night in order I~ 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.
21. From the above provisions, it is clear that intention to commit an offence is an essential ingredient. Mere occupation even if illegal cannot amount to criminal trespass (1983 CRJ. 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 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 thar complainant must be in unquestionable possession of property at time of trespass alleged (1996 CRI.
II L. J. 256 State of Goa v. Pedro Lopes).
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22. 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 I I State Vs. Pradeep @ Bunty Page 13 of 17 I I L A 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 th be present. In order to establish that the entry on the property was with e pL d '' . . II( annoy, intimidate or insult, it is necessary for the Court to be inten!J,o 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).
23. The fact that there was or not any intention to commit an offence is a matter on which usually it is impossible to adduce positive and tangible evidence and it is a matter which has to be judged in the light of the evidence and surrounding and antecedent circumstances. In the present case, PW3 is eye witness of the incident. In his testimony he has deposed that on 02.01.2000, at about 09.00 p.m. to 09.40 p.m., a person came to his quarter and introduced himself as brother of Chatter Pal. He further stated to him that he does not have key of the said quarter of Chatter Pal. PW 3 further deposed that he had seen the said boy namely, Bunty with Chatter Pal 2-3 times. There_ after, the said Bunty broke open the lock of quarter of Chatter Pal in his pres- ence despite his objection. On the other hand, PW2 has deposed that on return_ F ~? anpura ing to his house on 03.01.2023, his neighbour Prahlad/PW3 informed him that State Vs. Pradeep @ Bunty Page 14 of 17 a person namely, Bunty who is the friend of his nephew came in his house on the previous night after consuming liquor and the said person broke open the lock of the main gate. He further stated that he was informed by his neighbour I dI tR~ul Bunty had stated himself to be son of uncle of the complainant. The said Bunty further stated that he had lost the key of the house and would stay for the whole night. But his neighbours refused him to allow to stay in the said house as he was not known to them. But thereafter, with the concurrence of other neighbours, complainant stated that his neighbour Prahlad allowed the said Bunty to stay in his house for one night as he was stating himself to be the cousin brother of the complainant.
24.From the testimonies of both PW2 and PW3, it cannot be held that causing annoyance, intimidation or insult was the aim of the entry of accused Bunty. Per contra, purpose of accused appears to merely spend the night at the house of his friend's uncle after he had consumed alcohol and whose house he used to visit. This inference also finds support from the testimony of PW 5. He is the nephew of the complainant and has stated that he was residing with his mater- nal uncle namely, Chatterpal Singh at A-35, Bhajanpura at the time of incident. He further stated that he was working at Jeans factory, Maujpur at the said time and accused was also working with him. He further stated that accused Bunty also used to visit the house of his uncle with him. Hence, criminal intent is missing on the part of accused.
25. Even otherwise, there are other material contradictions in the testimony of PW2 and PW3. While PW 2 Chatter Pal has stated that he was informed by PW3 that Bunty with the concurrence of other neighbours, was allowed to stay in his house by PW 3 for one night as he was stating himself to be the cousin brother of the complainant, per contra, PW3 deposed that the said Bunty broke open the lock of quarter of Chatter Pal in his presence despite his objection.
State Vs. Pradeep @ Bunty Page 15 of 17 FIR No. 7I i The said contradiction is a material contradiction. It is pertinent to note that PW 3 like the complainant is also a police official. It is hard to fathom that a person ~f the presence of police officials ( i.e. PW 3 as well as other neigh -
I 3 I' t ours'5tnce complainant was residing in police colony) would break open the lock to commit an offence without any objection. Additionally, there is another important lacuna in the prosecution version which was left unexplained by the prosecution. It is admitted position that the complainant/PW2 returned to his house on 03.01.2000 at around 6:00 pm and on coming back saw that the lock of his house was broken. But the first complaint in this respect was made on 05.01.2000 only at around 07.05 p.m. This in conjunction with the fact that the accused Pradeep @ Bunty was known to the complainant from prior to the incident and was suspected by him raises suspicion. It is also pertinent to note that PW2/Complainant himself was working in Delhi Police at the time of incident. Therefore, it also cannot be believed that the there was delay in registering the complaint on the part of PS concerned. This unexplained delay of 2 days on the part of complainant, though not by itself fatal, but in conjuction with above discussed circumstances raises doubt on the prosecution version. Benefit of doubt of the same must therefore go in favour of accused. All the facts are not consistent with the hypothesis of the guilt of the accused. It cannot be inferred that the dominant intention which prompted the entry of accused was causing of intimidation, insult or annoyance to the complainant. It is the cardinal principle of criminal law that the accused persons are pre - sumed to be innocent until proved guilty. The concomitant of the aforesaid discussion is that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt as intent to commit an offence cannot be inferred from the testimony of PW2 and PW3. As a cumulative effect of the above said discussion, I hold that the prosecution has failed to prove the ingredients of criminal trespass under section 441 IPC. As criminal trespass remains unproved, therefore, the charge of house trespass also fails.
State Vs. Pradeep@ Bunty Page 16 of 177I - Accordingly, prosecution fails to prove ingredients for the offence I JLii ' ;:hie under section 457 IPC.
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26. In view of the aforesaid discussion and findings, accused is acquitted for the offence punishable under section 380 IPC as well as 457 IPC. His bail bond stands cancelled and surety stands discharged. File be consigned to the Record Room as per rules.
Announced in the (R E DHIMAN)
Open Court on 03.04.2023 Metro Itan Magistrate-01
KKD Courts, Delhi
It is certified that this judgment contains seventeenth (17) pages and each page bears my signature.
(RU .--......- DHIMAN)
Metropo · rate-01
NE ourts, Delhi
03.04.2023
State Vs. Pradeep @Bunty Page 17 of 17 FIR No. 6/2000, PS Bhajanpura
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