Delhi District Court
State vs . Manish And Ors on 20 June, 2019
IN THE COURT OF MS. RICHA GUSAIN SOLANKI, METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI. FIR No. : 153/17 U/s : 380/457/34/411 IPC P.S : BHD Nagar State Vs. Manish and ors Date of Institution of case: 22.12.2017 Date of Judgment reserved: 20.06.2019 Date on which Judgment pronounced: 20.06.2019 JUDGMENT
Unique ID no. : 10431/17
Date of Commission of offence : 15.08.2017
Name of the complainant : Kesh Ram
s/o Sh. Shravan Lal
r/o H. No. 107, B Block, New Gopal
Nagar, Najafgarh, New Delhi.
Name and address of the accused : (1) Manish
persons s/o Sh. Satnarain
R/o Village Mitrao, New Delhi.
(2) Ravi @ Langda @ Khati
s/o Sh. Narender
R/o H. No. 306, Near Canara Bank,
Village Mitrao, New Delhi.
(3) Gulshan
s/o Sh. Dheer Singh
R/o H. No. 307, Balmiki Pana,
Village Mitrao, New Delhi.
Offence complained of : 380/457/34/411 IPC
Plea of accused : Not guilty
Date of order : 20.06.2019
FIR No. : 153/17 P.S : BHD Nagar
U/s : 380/457/34/411 IPC
State Vs. Manish and ors Page 1 of 11
Final Order : Accused Manish is convicted for the
offence u/s 380/457/34/411 IPC but
accused Ravi and Gulshan are
acquitted for all offences.
BRIEF REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 15.08.2017 ASI Krishan Kumar received DD no.4A, upon which he alongwith constable Vinod Kumar went to the spot. He met complainant Sh Kesh Ram, who handed over accused Manish and stolen LG LED to him. Complainant gave his statement that he is working in Delhi Police and on that day, he was leaving for his duty early due to Independence day arrangements. He stated that at around 2.10 a.m, his neighbour Suresh called him telephonically and informed that thieves had broken into the house of his immediate neighbour namely Jagram. He stated that when he came out of the street, he saw that three boys were coming out of the house of Jagram and one of the boys was carrying LED. He stated that he immediately apprehended the boy who was carrying the LED (accused Manish) but the other two managed to escape. He stated that his neighbour Suresh made PCR call. He stated that the main gate of the house of Jagram was opened and latch of the inner room was broken open and the latch was lying on the floor. He also stated that the house was in strewn condition.
On the basis of aforesaid facts, present case FIR No.153/17, P.S. BHD Nagar was lodged for the offences under Section 380/457/411/34 IPC.
2. During investigation, accused Manish disclosed the names of his accomplices as Gulshan and Ravi. Later the statement of victim Jagram was recorded, wherein he informed that he had gone to his native village at the time of incident. He also stated that when he came back he found that the lock on the main gate was missing and the latch of the inner room was broken. He stated that the articles were lying in strewn condition and one money bank belonging to his son Amit and LG LED FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 2 of 11 were missing. Accused Gulshan was apprehended on the pointing out of accused Manish and accused Gulshan got recovered the stolen money bank. Accused Ravi was arrested after his production in the court on production warrants. Accused Ravi got recovered iron rod which was used to commit the offence.
3. Arguments were heard and charge for the offences under Section 380/457/34 IPC was framed against accused Ravi and charge for the offences under Section 380/457/34/411 IPC against accused Manish and Gulshan, to which the accused persons pleaded not guilty and claimed trial.
4. Prosecution examined eight witnesses in its support:
4.1. PW1 Kesh Ram entered the witness box on 14.03.2018 and deposed on the lines of the complaint. He identified the LED TV and broken latch as Ex P1 and Ex P3. He identified accused Manish correctly.
In his cross examination, he stated that when he was entering the house of Jagram, three boys came out of his house. He admitted that he did not see those boys while they were inside the house. He stated that he entered in the house of Jagram with accused Manish and LED but did not wear any gloves to protect the chance prints. He did not remember if Ex P4 was taken in his presence.
4.2. PW2 Sh Jagram Meena entered the witness box on 28.05.2018 and deposed that on 15.08.2017, he had gone to his native place, when he received call of Kesh Ram regarding theft at his house. He stated that when he came back he found that the lock on the main gate was broken and the latch of the inner room was broken. He stated that the articles were lying in strewn condition and one money bank (containing approximately Rs.200250/) belonging to his son Amit and LG LED were missing. He stated that he joined the investigation and went with police and one accused to village Mitraon, where accused got recovered money bank. He relied on seizure memo of money bank Ex PW2/A. He FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 3 of 11 identified the stolen LED and money bank as Ex P1 and Ex P2 and also identified the broken latch as Ex P3. He identified the spot and LED TV in photographs Ex P4. He stated that accused Manish had got the recovery done but later he stated that he could not identify the person from whom the money bank was recovered.
In his cross examination by ld. APP he stated that he could not say, if the money bank was recovered from accused Gulshan.
In his cross examination, he stated that he did not join investigation or visit any place with police for investigation in this case. He stated that no recovery was made in his presence.
4.3. PW3 Suresh, entered the witness box on 28.05.2018 and deposed that he was sleeping in his house at the time of incident, when he heard some screams. He stated that when he came out he saw that 23 persons had entered the house of Jagram. He stated that he informed Kesh Ram and came out of his house. He stated that when he reached near the gate of the house of Kesh Ram, three boys came out and tried to run away. He stated that accused Manish was apprehended with LG LED by Kesh Ram. He identified the stolen LED and broken latch. He stated that accused Manish was arrested vide Ex PW3/A in his presence. He identified accused Manish correctly.
In his cross examination, he stated that he had heard noise of opening of iron door, which was not very loud but the normal noise such door makes. He stated that he was standing in his balcony when the gate was opened and he saw one person at the gate and two persons inside the room. He stated that the person standing at the gate was in muffled face. He stated that his statement was recorded on the instruction of Kesh Ram. He admitted that accused was apprehended by someone but shown by them.
4.4. PW4 Ct. Vinod entered the witness box on 11.10.2018 and deposed that he FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 4 of 11 and ASI Krishan Kumar reached the spot on receipt of DD no.4A Ex PW4/A. He deposed on the lines of chargesheet and identified the LED and broken latch in photographs Ex P4. He identified accused Manish correctly.
In his cross examination by Ld. APP, he stated that the LED and broken latch was seized in his presence.
In his cross examination, he stated that he did not know who had taken the photographs Ex P4.
4.5. PW5 Constable Naresh entered the witness box on 20.11.2018 and deposed that he was with IO when accused Ravi was arrested vide memo Ex. PW5/A and his disclosure Ex PW5/B was recorded. He stated that iron rod Ex I was recovered at the instance of accused Ravi from an electric pole and the same was seized and sealed with seal of SSS vide memo Ex PW5/C. In his cross examination, he stated that the place of recovery was a busy road. He stated that no public person was joined in the recovery. He did not know from where the white cloth was arranged by IO. He stated that the seal handing over memo was not prepared in his presence.
4.6. PW6 ASI Krishan Kumar entered the witness box on 17.01.2019 and deposed on the lines of chargesheet. He correctly identified accused Manish. He stated that he recorded statement of complainant Ex PW6/A and prepared tehrir Ex PW6/B. He stated that he prepared site plan Ex PW6/C and sealed the LED and broken latch with borrowed seal of SSS. He relied on personal search memo of accused Manish as Ex PW6/D and his disclosure statement Ex PW6/E. He relied on arrest memo of accused Gulshan and his personal search memo Ex PW6/F and Ex PW6/G, his disclosure statement Ex PW6/H. He stated that money bank was recovered from a pit near wall of forest area of village Mitraon. He deposed about the arrest of accused Ravi and recovery of the iron rod at his instance. He identified the spot and case property in FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 5 of 11 photographs Ex P4.
In his cross examination, he stated that he did not join public persons because it was 4.00 a.m. He stated that the crime team had taken photographs in his presence. He stated that Suresh was carrying the LED when he seized the same. He stated that the money bank was received on the same day at 7.30p.m. He stated that the negatives of the photographs are not filed in the court. He stated that he handed over the seal of constable Vinod later to constable Mukesh and then to constable Naresh but there was no handing over memo. 4.7. PW7 Ct Mukesh entered the witness box on 04.02.2019 and deposed that accused Gulshan was apprehended at the instance of accused Manish and the money bank was recovered at his instance in the presence of victim. He identified accused Gulshan and money bank.
In his cross examination, he stated that they reached the forest area at around 7.00p.m.
4.8. PW8 HC Sunil Kumar entered the witness box on 27.02.2019 and proved the present FIR Ex PW8/A.
5. Statement of the accused persons were recorded u/s 281 r/w 313 CrPC wherein they denied all the allegations made against them. They chose not to lead evidence in defence.
6. I have heard both the sides and perused the record.
7. To prove offence u/s 380/457/34 IPC prosecution had to prove that accused persons in furtherance of their common intention, committed lurking house trespass by night in the house of victim Jagram or that they, in furtherance of their common intention, committed housebreaking by night in order to commit theft in the said house and actually committed theft.
8. Further, to prove offence u/s 411/34 IPC prosecution had to prove that accused Manish was found in possession of stolen LED Ex P1 and accused Gulshan was FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 6 of 11 found in possession of stolen money bank Ex P2, knowing the same to be a stolen property.
9. As far as accused Manish is concerned, the case of prosecution is that he was caught red handed at the spot. PW1 has deposed that he was informed by PW3 regarding the thieves after which he immediately went out and managed to get hold of accused Manish with the LCD Ex P1. His testimony withstood the test of crossexamination and no material inconsistency was brought out.
10. Ld counsel for accused Manish has argued that complainant is a police official and he has not explained where he was on duty that day or whether he informed his office about such incident, specially in view of the fact that it was 15 th August that day. Ld defence counsel has also argued that the version of prosecution that one neighbour (Suresh) called complainant instead of dialing 100 number is not reliable.
11. I am unable to agree with ld counsel. Just because complainant/PW1 works with Delhi police is no ground to disbelieve him. The place of his working or duty hours are not relevant if the presence of PW1 near the spot of incident is not in question. The conduct of PW Suresh is also explainable. He saw a theft being committed in the middle of night and he might have thought it to be reasonable to take help of PW1 who was working with police. It is understandable that either due to fear or out of anxiousness PW Suresh thought that PW1 was better experienced to handle such a situation. As regards the PCR call, it was made soon after accused Manish was apprehended. Ex PW4/A shows that at 3:15 am, theft was reported to PCR.
12. PW1 has deposed that he apprehended accused Manish at about 2:10 am. The arrest memo of accused Manish Ex PW3/A shows that he was arrested from the house of victim at 7:45 am. It was not challenged by the accused Manish that he was not present at spot of incident/house of victim at 2:10 am or that he was not arrested from that place soon after the FIR was registered. There is no explanation what accused Manish was doing at/around the house of victim in the dead of the FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 7 of 11 night. Only one suggestion was put to PW1 that he has falsely implicated accused Manish on account of personal enmity but there is no recital of such enmity. PW1 has refused that he knew accused Manish and no negative suggestion was put to him in this regard.
13. Similarly, PW3 has also deposed that he had informed PW1 and thereafter, PW1 managed to get hold of accused Manish while other two boys ran away. He also categorically deposed that accused Manish was found in possession of stolen TV Ex P1. As suggested by ld defence counsel, this witness obviously did not see what was going on inside the house of victim but he saw three boys, including accused Manish come out of the house of victim at 2:00 am with a LCD. PW3 had also deposed that one of the boys, who was standing guard at the gate was in muffled face. The conclusion of theft drawn by him was obvious and natural.
14. Finally, PW2 has identified that when he came home, he found that his house had been ransacked and one money bank and his LCD was missing from his house. He also identified the LCD recovered from accused Manish to be the same LCD which was stolen from his house. This identification of stolen LCD by PW2 was not challenged by any of the accused persons.
15. Ld. defence counsel has argued that there were no public witnesses to the recovery of LED and that there is inconsistency regarding the person from whom the recovery of LED was made.
16. I am unable to find any force in this argument. PW1 and PW3 are both independent public witness to the recovery of LED TV. They are not the victims and had nothing to lose or gain by falsely implicating the accused. They have both deposed clearly that accused Manish was trying to run away with the LED when he was apprehended.
17. Thus, it stands established that accused Manish and two more boys had, in furtherance of their common intention, entered the house of victim at around 2:10 am and committed theft there. Since they had entered the house of victim in a FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 8 of 11 clandestine manner and it is also unchallenged that one of them was in muffled face, it also stands established that accused persons had taken precautions to conceal their entry in the house of victim.
18. In addition to this, PW2/victim deposed that when he returned home, he found that the latch of the room and the main gate had been broken. The said latch was seized by IO vide memo Ex PW4/B. PW2 identified the broken latch Ex P3 as the same latch of his house which was broken. PW2 was not crossexamined by any of the accused persons in this regard.
19.Therefore, prosecution has been able to prove both lurking house trespass by night and also housebreaking by night.
20. The offence under Section 380/457/34/411 IPC has been proved beyond reasonable doubt against accused Manish.
21. Regarding accused Gulshan, the case of the prosecution is that he is one of the boys who had fled from the spot. PW1 and PW3 have both not identified accused Gulshan. Accused Gulshan was arrested upon disclosure of accused Manish and he allegedly got the stolen money bank recovered.
22. There is one public witness to this recovery, that is, PW2/victim. He deposed that on 15.08.2017, he joined the investigation and went to Village Mitraon where the stolen money bank was got recovered by an accused. However, he was not sure about which accused got it recovered and initially identified accused Manish as the one who got the recovery of money bank done. Nevertheless, it is to be borne in mind that both accused Manish and Gulshan had gone to Village Mitraon to get the recovery done. PW2 had seen accused Manish and Gulshan only once, that is on the day of recovery and then after a year in the Court. It is natural that he got confused between them.
23. However, there are numerous other discrepancies also regarding the recovery.
Recovery memo Ex PW2/A mentions that there were some coins in the FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 9 of 11 money bank while PW7 deposed that the money bank was empty. If the money bank, made of clay, was empty why would accused Gulshan take the pains of hiding it in a pit. He could have simply thrown it and it would have been destroyed.
Further, when PW2 was crossexamined, he deposed that no recovery was made in his presence and that he had signed some papers at the Police Station.
Further, IO/PW6 has admitted that he did not try to join any public person to the recovery. It would have been one thing to say that he tried but people refused to join investigation or that there was no public person but PW6 has deposed that he asked none. There is no explanation why PW6 did not deem it important to do so specially when the entire case against accused Gulshan hinges on this recovery.
Lastly, there is no seal handing over memo of "SSS" after the money bank was sealed.
24. The offence under Section 380/457/34/411 IPC has not been proved beyond reasonable doubt against accused Gulshan.
25.Similarly, the case of the prosecution against accused Ravi is that he is one of the boys who had fled from the spot. PW1 and PW3 did not identify accused Ravi also. Just like accused Gulshan, accused Ravi was also arrested upon disclosure of accused Manish and he allegedly got the weapon/iron rod Ex P3 recovered.
26. Like the recovery of money bank, IO did not join any public person to this recovery although the recovery was made from a public road. There is no again explanation why PW6 did not deem it important to do so specially when the entire case against accused Ravi hinges on this recovery. Admittedly the iron rod of the type Ex P3 are easily available in the market.
Lastly, Ex PW5/C mentions that the seal was handed over to Ct Naresh but Ct Naresh was the witness to the recovery and subordinate to IO. There is no FIR No. : 153/17 P.S : BHD Nagar U/s : 380/457/34/411 IPC State Vs. Manish and ors Page 10 of 11 seal handing over memo of "SSS" after the alleged weapon was sealed. Therefore, the possibility of tampering with the case property cannot be ruled out.
27. The offence under Section 380/457/34 IPC has not been proved beyond reasonable doubt against accused Ravi.
28. To conclude, accused Manish is convicted for offences u/s 380/457/34/411 IPC but accused Gulshan is acquitted for offences u/s 380/457/34/411 IPC and accused Ravi @ Langda is acquitted for offences u/s 380/457/34 IPC.
Copy of judgment be give free of cost to convict.
Announced in open court today (Richa Gusain Solanki)
on 20th of June 2019 Metropolitan Magistrate07
Dwarka District Court/Delhi
Digitally signed
RICHA by RICHA
GUSAIN
GUSAIN SOLANKI
SOLANKI Date: 2019.06.20
15:37:38 +0530
FIR No. : 153/17 P.S : BHD Nagar
U/s : 380/457/34/411 IPC
State Vs. Manish and ors Page 11 of 11