Delhi District Court
State vs . : Suhel @ Sohel on 2 July, 2015
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI
FIR No. : 501/14
U/s : 457/380 IPC
PS : Sunlight Colony
State Vs. : Suhel @ Sohel
JUDGMENT
a The Sl. No. of the case : 187/3/14
b The date of commission : 13.08.2014
c The date of Institution of the case : 27.08.2014
d The name of complainant : Shri Nirbhaya Singh S/o Shri Tek
Ram R/o H. No. 119, Village Sarai
Kale Khan, New Delhi.
e The name of accused : Suhel @ Sohel S/o Mohd.
Saheed R/oVegabond Barapula,
Sarai Kale Khan.
f The offence complained of : 457/380 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 23.05.2015
i The final order : Convicted u/s 457 IPC
Acquitted u/s 380 IPC
j The date of judgment : 02.07.2015
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The accused has been sent for trial on the allegations that on 13.08.2014 at
about 3.15 AM at House No. 119, Village Sarai Kale Khan, New Delhi, within the jurisdiction of PS Sunlight Colony, he was found committing lurking trespass at abovesaid house, belonging to complainant Nirbhaya Singh with intention, to FIR No. 501/14 1 of 9 commit theft and was apprehended by complainant at the spot. Investigation was conducted and charge sheet was filed in the court on 27.08.2014. 2 Notice u/s 251 Cr.P.C. for commission of offences punishable u/s 457/380 IPC was served upon the accused on 18.11.2014 to which he pleaded not guilty and claimed trial.
3 To prove its case prosecution examined 3 witnesses in support of its case.
PW1 is Nirbhay Singh, who being the complainant in the present case has deposed that on 13.08.2014 at about 3.15 midnight while sleeping on his varamdah of his H. No. 119, Sarai Kale Khan, New Delhi, he suddenly heard barking of his dogs and he woke up and saw that accused came inside his house by jumping the wall with intention to commit theft in his house and while his dog was in the process of attacking the accused, he caught hold the accused and saved him from the clutches of dog. He has further deposed that his other family members also woke up and he made a call at 100 number. Police came there and he handed over the accused to police. He has further deposed that police recorded his statement. He has proved his statement as Ex. PW1/A. He has further deposed that IO seized one iron hammer, one iron rod, one screw driver and one small torch from the possession of accused and has also proved the seizure memo of said articles vide Ex. PW1/B. This witness has also proved arrest memo and personal search memo of accused as Ex. PW1/C and Ex. PW1/D respectively. Complainant has also identified case property as Ex. P1 (Colly.).
PW2 is HC Ramesh Chand, who being deputed with the IO during investigation of the present case has deposed about the investigation done by IO in the present case and has also proved the documents prepared during the course of investigation like seizure memo of one iron rod, one hammer, one small torch and one small screwdriver vide Ex. PW1/B and arrest and personal search of accused FIR No. 501/14 2 of 9 vide memos Ex. PW1/C and Ex. PW1/D. PW3 is ASI Jawahar Lal, who being the IO of the case has deposed about the investigation done by him in the present case and has exhibited the documents as stated above during the course of investigation. Apart from the abovesaid PW3 has also deposed about the preparation of rukka Ex. PW3/A and site plan Ex. PW3/B. It is pertinent to note that the accused has admitted the genuineness of the FIR and one DD No. 50 dated 13.08.2014 vide Ex. PA1 & Ex. PA2 in his statement recorded u/s 294 Cr.PC.
4 Statement of accused was recorded U/s 313 Cr.P.C., wherein accused has denied all the allegation made against him and deposed that it is a false case registered against him. The accused refused to lead evidence in his defence.
5 I have heard Ld. APP for the State and Ld. LAC Ravinder Tiwari for accused as well as gone through case file very carefully. 6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
7 Ld. LAC for accused on the other hand has argued that the accused is being wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case.
8 I have perused the case file very carefully and have duly considered the respective arguments.
9 Relevant Law:
Offence u/s 457 IPC is a lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment Whoever FIR No. 501/14 3 of 9 commits lurking house trespass by night or house breaking by night in order to 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. 10 Onus to prove the case beyond reasonable doubt It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that 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, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
11 Now I will discuss whether ingredients of section 457 IPC and 380 IPC have been satisfied or not.
(i) In my view offence u/s 380 IPC alleged against the accused is not proved on the evidence led nor even an attempt to commit offence u/s 380 IPC. The reason is that the prosecution has not proved whether any particular article was either moved or attempted to be moved from the lawful possession of the complainant in his house. Hence, accused is acquitted for the charge u/s 380 IPC.
(ii) Before discussing whether offence u/s 457 IPC has been
FIR No. 501/14 4 of 9
proved or not, it is necessary to discuss the facts of the case and the evidence brought on record and proved against the accused.
It is alleged that the complainant PW1 Nirbhay Singh residing at the given address of House No. 119, Sarai Kale Khan, New Delhi was sleeping in veranda of the house on 13.08.2014 when at about 3.15 am night time, he suddenly heard barking of his dog due to which he woke up and saw the accused person jumping the wall for coming inside his house. The accused came inside his house and when the dog was about to attack the accused, he saved him from the clutches of the dog and caught hold of the accused and at the same time made a call at 100 number. Police arrived, recorded his statement Ex. PW1/A on basis of which FIR was lodged, accused was searched vide search memo Ex. PW1/C and case properties Ex. P1 namely one iron hammer, one iron rod, one screw driver and one small torch was seized from his possession which are apparently the instrument for house breaking. The complainant identified the said accused in the court and stated that he had committed trespass in his house for the purpose of committing theft.
12 The defence counsel/LAC cross examined the witnesses and could not highlight any contradiction in the allegations of the prosecution. It has been proved beyond reasonable doubt that the accused jumped over the wall of the complainant's house, he was apprehended by the complainant alongwith the instruments Ex. P1 which are apparently instruments for house breaking and even after cross examination neither it could be denied by the defence that he had not entered the house or if he had entered, he had entered lawfully and also it could not be denied that he entered there for the purpose of committing theft. Investigation was also conducted fairly and all the witnesses duly identified the accused as the one who was apprehended at the spot. On one hand this evidence FIR No. 501/14 5 of 9 led by the prosecution has gone unchallenged and on the other hand the arguments of the defence counsel also could not highlight any iota of doubt on the prosecution case. However, since it is necessary to deal with the arguments of the defence counsel the same is being done in the next paragraph. 13 The arguments of Ld. Defence counsel are being discussed and dealt with simultaneously as follows:
(i) Ld. Defence Counsel has argued that the accused has been implicated falsely because the actual circumstances in which the accused entered the house of the complainant have been hidden by the prosecution. Ld. Defence Counsel has argued that the accused entered the house of the complainant under compulsion as he was being followed by a dog on the street and he jumped over the wall of the complainant to save himself.
This argument is nothing but shot in the dark as firstly no such suggestions have been given to the prosecution witnesses in their cross examination nor any defence evidence has been led in this respect and if indeed the accused was being followed by street dogs then what is the necessity of his entering the house after jumping over the wall with instruments Ex.P1 apparently for house breaking. Accused could have stayed on the wall to save himself from the street dogs.
(ii) Ld. LAC has further argued that the complainant has stated in his cross examination that the accused was apprehended by him with one hand and PCR call was made by the complainant with the other hand which is not a probable version of how the actual things took place.
This argument is totally superficial as what the complainant did is not a difficult task for a physically able person and this ability has not been challenged by the defence counsel during the trial.
FIR No. 501/14 6 of 9 14 Hence, in view of aforesaid discussion, prosecution is able to prove the guilt of the accused for offence punishable u/s 457 IPC. However, the accused is acquitted for offence punishable u/s 380 IPC. Let he be heard separately on the point of sentence. Announced in the open (Ashok Kumar) Court on 02.07.2015 MM(South East)07, Saket, New Delhi. FIR No. 501/14 7 of 9 IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI FIR No. : 501/14 U/s : 457 IPC PS : Sunlight Colony State Vs. : Suhel ORDER ON POINT OF SENTENCE Presence : Ld. APP for the State, Convict in person with LAC Ravindra Tiwary. Vide separate judgment dated 02.07.2015 the accused has been convicted for offences u/s 457 IPC. Heard on point of sentence.
Ld. APP for the State says that no leniency should be shown in sentencing the convicts and maximum sentence should be imposed upon them as provided under law.
Ld. Counsel for the convict says that he is in J/C in this case since 13.08.14 and he has family to support consisting of widow mother, brother and sister. Convict is scrap hawker ( Kabari) by profession. The convict is not a previous convict. Hence the convict be given benefit of probation as per the Probation of Offenders Act.
I have heard both the counsel for convict as well as Ld. APP for the State. The purpose of sentencing after conviction is a balancing act. On one hand, punishment should be sufficient to deter the accused not to repeat the offence in future and become a good member in the society. On the other hand, the punishment should not be too harsh which results in accused becoming a hardcore criminal.
In my view convict does not deserve too much leniency and FIR No. 501/14 8 of 9 sentencing the convicts merely up to the period undergone by him and giving him benefit of probation would be overlooking the gravity of the offence. I am not in favour of releasing the accused on probation as such offences are increasing day by day in alarming numbers and deterrent affect must be shown to the prospective evil elements. However, there is no document filed by the prosecution to establish any previous involvement and previous conviction against the accused. Hence, in the facts and circumstances of the case, keeping in view that the accused has been found guilty of committing lurking trespass at night in the house of complainant and in order to discourage such conduct and that sentencing should be in proportion to the illegal and wrongful conduct, accordingly, the convict is sentenced to a period of one year RI for offence u/s 457 IPC. However no fine is imposed upon the convict. Benefit of the period already undergone in judicial custody by the convicts be given. A separate copy of judgment and order on sentence be provided to Counsel of convicts free of cost. File be consigned to record room.
Announced in the open (Ashok Kumar)
Court on 02.07.2015 MM(South East)07,
Saket, New Delhi.
FIR No. 501/14 9 of 9