Delhi District Court
State vs . Mohd. Ishrar on 20 August, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Mohd. Ishrar
FIR No. 834/14
U/s 380/457/411 IPC
P.S. Jamia Nagar
J U D G M E N T
Serial No. of the Case : 402/2/14
Unique Identification No. : 02406R0325802014
Date of Institution : 25.11.2014
Date on which case reserved for
judgment : 11.08.2015
Date of judgment : 20.08.2015
Name of the complainant : Mustkim
s/o Shri Shah Mohd.
r/o B21, Abul Fazal
Enclave, Jamia Nagar, New
FIR No. 834/14
P.S. Jamia Nagar Page No.1 of 18
Delhi.
Date of the commission of offence : 26.06.2014
Name of accused : Mohd. Ishrar
s/o Mohd. Ishtiyar
r/o P93, Batla house, Jamia
Nagar, New Delhi.
Offence complained of : U/s 380/457/411 IPC
Offence charged of : U/s 380/457/411 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted u/s 380 IPC
Acquitted u/s 457/411 IPC
Date of Institution : 25.11.2014
Date on which case reserved
for judgment : 11.08.2015
Date of judgment : 20.08.2015
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was FIR No. 834/14 P.S. Jamia Nagar Page No.2 of 18 registered on a complaint of complainant Mustkim who alleged in this complaint that he was residing alongwith his family at H.No.B21, Abul Fazal Enclave, Jamia Nagar, New Delhi and was running a shop with the name of "Kadir Naan House". In the intervening night of 25/26.09.2014 at around 12:00 in the midnight after closing his shop went alongwith two employees to a nearby place and when at around 03:15am he started for his house and was crossing his shop, he found that the shutter of his shop was opened and the lock of the same was broken. Thereafter, he peeped inside and found that the Indane Gas Cylinder was missing. He immediately came out and also found that one person was carrying the cylinder on his shoulder and therefore he shouted to stop the man but the aforesaid person started walking fast. When he reached near the "dhalan" of Zakir Nagar and he found two police personnels coming to that side. He informed the police personnels regarding the same and with the help of the police officials, the aforesaid person was caught and from whose possession one Indane Gas Cylinder was recovered. Upon inquiry, the name of the accused was found as Mohd. Ishrar and upon search of the accused, one iron rod was found inside the wearable pant on the left side of the accused. Thereafter police officials informed regarding the same at the police station and thereafter the accused was taken near the shop. The aforesaid cylinder belonged to the complainant as on the lower FIR No. 834/14 P.S. Jamia Nagar Page No.3 of 18 side of the cylinder it was written "CM/L 1268249". Further the silver colour broken lock of Amway, Jaquar was recovered at the instance of the accused. It was alleged in the complaint that the accused after breaking upon the lock of the shop of the complainant had stolen the aforesaid gas cylinder belonging to the complainant.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 380/457/411 IPC to which he pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as Seven witnesses in order to prove its case.
PW1 Ct. Robin Pawar deposed that on the intervening night of 25/26.06.2014 (wrongly mentioned) was posted at PS Jamia Nagar and on FIR No. 834/14 P.S. Jamia Nagar Page No.4 of 18 that night he alongwith Ct. Sunil Kumar were on patrolling duty from 08:00pm to 08:00am in the area of beat no.2, Joga Bai, Zakir Nagar. Further on that day, they were patrolling the area on Govt. Motor Cycle bearing No.DL1SN4567 and when they reached near 189/6, Zakir Nagar, main road near Kadri Naan House at about 03:15pm, they were informed by complainant namely Mohd. Mustkim that one person had stolen his cylinder from his shop after breaking the shutter and that person was going towards Batla House Chowk. Complainant further informed that he had raised alarm to stop that person but he still ran away with the cylinder and thereafter they took the complainant on the motor cycle and went towards Batla House Chowk. Accused was apprehended with one cylinder near Rehman Masjid at the instance of the complainant and the name of the accused was revealed as Mohd. Ishrar (he was correctly identified by the witness). In cursory search of the accused, one iron rod from right pocket of his wearing pant was recovered and the accused was holding the cylinder on his shoulder when he was apprehended. Upon interrogation, accused disclosed that he had stolen the same from the aforesaid shop and thereafter they both alongwith the complainant and the accused and the case property went to the spot. Meanwhile, PW1 informed about the incident to PS and SI Amit Bhatti alongwith Ct. Ram Phool reached the spot and IO recorded the statement of FIR No. 834/14 P.S. Jamia Nagar Page No.5 of 18 the complainant and got the same registered through Ct. Ram Phool. After the registration of FIR, Ct. Ram Phool came back to the spot and handed over the original rukka and copy of FIR to IO.. The lock of the shutter of the shop was found broken and the lock was of make "Amway" colour Silver and one iron rod was put into the white pullanda and sealed with the seal of "AB". The same was seized vide Ex.PW1/A and the case property was seized vide Ex.PW1/B. Accused was arrested and his personal search was conducted vide Ex.PW1/C and Ex.PW1/D. Case property was sent to malkhana and accused was sent to lockup. The case property and the recovered articles from the accused were correctly identified by the witness and same were Ex.P1 and Ex.P2.
During the crossexamination, PW1 by Ld. LAC for accused he stated that he had made the entry in the DD register before leaving for patrolling but he do not remember the number of said DD. No Crime Team was called by the IO in his presence and no chance prints were lifted by IO. No photographs of place of occurrence was got clicked and that the cylinder was empty. It was incorrect to state that no distinct mark of identification was available on the cylinder and PW1 voluntarily stated that one dock number was mentioned thereon and it was correct that there was no distinct mark on the recovered iron rod. Further that no sketch memo of the iron rod and the FIR No. 834/14 P.S. Jamia Nagar Page No.6 of 18 lock was prepared in his presence and no key of the lock was demanded from the complainant nor was it seized. Further that they remained at the spot for about 2 ½ hours and he did not remember the exact time when they left the spot. No public person was present at the spot and IO reached the spot at around 03:30am03:45am. Further that IO kit was called by IO through Ct. Ram Phool and he did not remember who had the seal from which the case property was sealed. Seal after use was handed over to IO and he did not remember if any serial number was mentioned on the lock. The rod was about 1 feet. No injuries were visible on the body of the accused. However, he was under the influence of liquor. It was correct that the place of occurrence was a residential area and that IO did not call any person from nearby house in the locality. Further that all the proceedings were conducted under the street light.
PW2 Ct. Mohar Singh deposed that on the directions of IO he had taken the accused to AIIMS Hospital for medical examination.
PW3 Ct. Sunil Kumar deposed on the lines of PW1 and the same is not repeated for the sake of brevity (date of the offence was mentioned as 25/26.06.2014).
During the crossexamination, PW3 stated that no specific DD entry was made regarding patrolling and that the accused was apprehended FIR No. 834/14 P.S. Jamia Nagar Page No.7 of 18 at around 03:30pm and thereafter they reached the shop of the complainant and remained there for about 1 hour. No crime team was called and IO reached the spot within 10 minutes of receiving information given by Ct. Robin. Personal search of the accused was conducted before reaching of the IO at the spot. Personal search was conducted in his presence and the complainant did not offer himself for his own personal search. He did not remember if any specific mark of identity was there on the seized iron rod and he cannot say if IO had clicked the photographs of shutter of the shop. He did not remember if there was any specific or distinct identity mark on the seized cylinder. Further that they reached the police station after completing the proceedings at the spot only after sunset and he did not remember as to who was having the material used for the purpose of sealing of the case property or whether any seal handing over memo was prepared. The measurement of iron rod was about 1 feet.
PW4 Mustakim (the complainant) deposed that he was residing at H.No.225, Nai Basti, Abul Fazal Enclave, Jamia Nagar and was running a dhaba at 189/06 Zakir Nagar in the name and style of "Kadir Naan House". In the intervening night of 25/26.09.2014, after closing his shop in the midnight at around 12:00, he went to the room of his worker situated at Mehboob Nagar and at 03:30am when he was returning back he found that FIR No. 834/14 P.S. Jamia Nagar Page No.8 of 18 shutter of his shop was half open and the lock was found on the ground near the shutter in a broken condition. He went inside the shop and found that one Indane Gas Cylinder was missing and when he came out of the shop, he saw that one person was carrying one cylinder on his shoulder and walking towards Batla House. He raised alarm but the aforesaid person started running and complainant chased him. Meanwhile, two police officials were found coming so he asked them to help him. With the help of police officials, accused was arrested and his personal search was conducted and from his search one iron rod was found and thereafter accused alongwith the complainant and police officials and the recovered cylinder and the iron rod were taken to the shop of the complainant. Thereafter, another police official came from PS and took possession of the broken lock of the shutter and his statement was recorded vide Ex.PW4/A. He did not remember the number of the aforesaid gas cylinder but could identify the same. The aforesaid broken lock, iron rod and gas cylinder was seized by the police officials and accused was arrested vide Ex.PW4/B and on the pointing out of the accused towards the place inside the shop from where he had taken the cylinder, a pointing out memo was prepared vide Ex.PW4/C. The site plan was prepared at the instance of the complainant vide Ex.PW4/D. Complainant handed over a copy of consumer slip, refill slip of the aforesaid gas cylinder to the police officials. FIR No. 834/14 P.S. Jamia Nagar Page No.9 of 18 The case property (Indane Gas Cylinder bearing No.CM/L1268249) alongwith iron rod and broken lock were correctly identified by the witness and same were Ex.P1. The original consumer slip and original refill slip dated 16.09.2014 were Ex.PW4/E and Ex.PW4/F. During the crossexamination, PW4 stated that he used to close his dhaba at around 12:00 midnight and it was correct that he had not seen any person while breaking the lock of the shutter or entering into the shop or committing the theft and taking out gas cylinder. Prior to the incident, there were two gas cylinders make Indane inside his shop and that he did not remember the shape and size of the rod. He did not remember whether the case property was sealed and the impression of the seal. It is correct that police had called him on his mobile phone and then he reached the police station and he remained there for about one hour. Further that he is an illiterate person and can only sign in Urdu. Further it is correct that he did not remember at what place he had signed on Ex.PW4/A and it is correct that after the incident police did not meet him again and never demanded any key from him. It was correct that he had not mentioned any distinct mark on the said gas cylinder and he did not remember the make or model of the aforesaid lock. It is further correct that the place of incident was a thickly populated area and many public persons were residing and some passersby FIR No. 834/14 P.S. Jamia Nagar Page No.10 of 18 were passing through the place of incident whole night.
PW5 Ct. Ram Phal deposed that in the intervening night of 25/26.09.2014 he was posted at PS Jamia Nagar and was on emergency duty from 08:00pm to 08"00am. At around 03:00am, IO received a call from Beat Constable namely Ct. Sunil and Ct. Robin and thereafter he alongwith IO went to the spot and met Ct. Sunil, Ct. Robin and complainant, who had apprehended the accused. IO prepared the rukka and got the FIR registered through him. After registration of FIR, he came back to the spot and handed over the original rukka and copy of Fir to the IO. IO recorded his statement.
During the crossexamination, PW5 stated that a call was received at around 03:00am and IO had not made any DD entry in regard to departure or arrival in his presence and that they reached the spot at around 03:10am. He did not remember description of the rod and he did not remember the exact time when he reached the PS alongwith the rukka and the time of returning back to the spot.
PW6 HC Prithvi Raj deposed that upon receiving rukka from Ct. Ram Phool, he endorsed the same vide Ex.PW6/A and registered the FIR Ex.PW6/B. PW7 SI Amit Bhati (Investigating Officer) deposed that in the intervening night of 25/26.09.2014, he was posted at PS Jamia Nagar on FIR No. 834/14 P.S. Jamia Nagar Page No.11 of 18 emergency duty from 08:00pm to 08:00am and at about 03:30am he received information from the staff that they have apprehended one accused with stolen LPG Gas Cylinder at Kadir Naan Roti Wala, Zakir Nagar. Thereafter, he alongwith Ct. Ram Phool reached the spot and met Ct. Robin, Ct. Sunil and complainant Mustakin alongwith accused Mohd. Ishrar (correctly identified by the witness) who was apprehended by them and they handed over the accused to PW7. Complainant handed over one gas cylinder make Indane recovered from the possession of the accused and also the lock of the shutter of the shop of the complainant in a broken condition. The iron rod measuring 1.5 feet was also handed over by the complainant to PW7 and thereafter he recorded the statement of the complainant Ex.PW4/A and prepared the rukka vide Ex.PW7/A and got the FIR registered through Ct. Ram Phool. Thereafter, Ct. Ram Phool returned back to the spot and handed over the copy of FIR and original rukka to him. The broken lock had on it mentioned "Amway Jaquar" and was of silver colour and thereafter the aforesaid lock and iron rod were sealed in the pullanda with the seal of 'AB' and the same were seized vide Ex.PW1/A. Gas Cylinder was seized vide Ex.PW1/B and thereafter he prepared the site plan and conducted the personal search of the accused and arrested the accused. Pointing out memo on the pointing of the accused was prepared and upon interrogation of the FIR No. 834/14 P.S. Jamia Nagar Page No.12 of 18 accused, disclosure statement of the accused vide Ex.PW1/D was prepared. He collected the photocopy of the Consumer Slip and the Refill Slip from the complainant and deposited the case property at the malkhana. He recorded the statement of the witnesses. Case property was Ex.P1 and Ex.P2.
During the crossexamination, PW7 stated that no chance prints were lifted from the spot and no photographs were taken of the spot. He did not put any distinct mark on the recovered lock and he did not observe any serial number on the lock. He did not demand any key from the complainant of the aforesaid lock and did not prepare any sketch of the recovered iron rod. The aforesaid iron rod was not measured by any scale as the same appeared to be above 1.5 feet. He reached the spot at around 03:40am and remained there till 06:45am. Complainant never visited the police station on 26.09.2014 in the presence of PW7. The serial number was mentioned on the gas cylinder and no chance prints of the same were taken on plain paper. Further the distance of the spot from PS was approximately 1 km and it was correct that the area is thickly populated and when he asked public persons to join investigation, they refused to do the same. He did not remember as to whom the seal after use was handed over and no specimen of the seal was prepared.
FIR No. 834/14 P.S. Jamia Nagar Page No.13 of 18
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused.
7. Before appreciating the evidence, it is relevant to see that to bring home the guilt of the accused it was required by the prosecution to prove the offence U/s 380 IPC, that accused removed movable property out of the possession of the complainant without his consent and the same was done with dishonest intention and it was removed from the building, or tent or vessel used as human dwelling or for the custody of property and for the offence U/s 411 IPC that the property was stolen and same was recovered from the possession of accused and the same was in possession of some other person before accused got possession and it was possessed by the accused with the knowledge that it was stolen property and accused retained the same dishonestly. Further to prove offence U/s 457 IPC prosecution was required to establish that the accused committed lurking house trespass by night with the intention to commit an offence punishable with imprisonment. FIR No. 834/14 P.S. Jamia Nagar Page No.14 of 18
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed and supported the prosecution story and the same is also established from the fact that the accused was arrested soon after the incident at the instance of the complainant. He has further argued that the stolen property was also recovered from the possession of the accused and therefore accused is liable to be convicted for the offences charged.
9. On the other hand, the Ld. LAC for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses have not corroborated in their testimony as apart from the complainant all the witnesses examined by the prosecution are formal in nature and upon being cross examined were not able to give any justification for not entering arrival or departure report in the police station and further that no chance prints or photographs of the spot were taken by the IO and further that IO failed to join any public witness in the present matter. He has further argued that in the present matter the alleged story of the prosecution that a rod, being an implement of house breaking was recovered from the FIR No. 834/14 P.S. Jamia Nagar Page No.15 of 18 possession of the accused from his pant is highly improbable as a rod allegedly of 1½ feet cannot in any manner fit in a pocket of a pant and which again castes a shadow on the story of prosecution. He has further argued that in the aforesaid facts and circumstances, credibility of the prosecution witnesses is doubtful and therefore accused is liable to be acquitted.
10. I have heard Learned LAC for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. In the present matter, accused was charged for the offences punishable U/s 380/411/457 IPC and since the offence U/s 380 IPC & Section 411 IPC are not of same kind, and they can only be read alternatively and hence accused can only be held liable either for offence U/s 380 IPC or 411 IPC .
11. Prosecution was firstly required to prove that the property seized from the accused formed the part of the property stolen and possession of stolen property soon after theft raises the presumption that the possessor is either the thief or received the good knowing them to be stolen. The burden to prove that the property seized is stolen property was lying on the prosecution and the same has been discharged by the fact that the stolen articles were FIR No. 834/14 P.S. Jamia Nagar Page No.16 of 18 recovered from the possession of the accused, the same day infact soon after the incident. The same is further clarified that after the commission of crime, accused was found in possession of property which he failed to give any satisfactory explanation and the stolen property was identified by the complainant and the complainant even provided the original slips regarding refill and delivery of the stolen cylinder on record. Therefore, accused is hereby liable for the offence U/s 380 IPC and not U/s 411 IPC since the presumption of receiving the stolen property is negated upon seeing the evidence and therefore, prosecution has proved the offence U/s 380 IPC.
12. The offence U/s 457 IPC two ingredients which were required to be established by the prosecution were that the accused committed lurking house trespass by night in order to commit an offence punishable with imprisonment. Where the evidence of theft is not direct but circumstantial, such evidence must be exhaustive and should exclude the possibility of guilt of any other person. In the present matter the same has not been proved as Prosecution has not led any cogent evidence to show as to how the accused committed the tresspass and further the fact that the rod was recovered from the wearable pant of the accused is highly improbable and also that the same was not seized and no sketch memo of the same was prepared is a fact FIR No. 834/14 P.S. Jamia Nagar Page No.17 of 18 difficult to believe. Accordingly, offence U/s 457 IPC does not stand proved.
13. The contradictions pointed out by the LAC for accused are minor in nature and no where shattered the story of the prosecution and further the fact that the accused has admitted the commission of offence, during his statement recorded U/s 313 Cr.P.C. is further corroborated with the cogent evidence on record.
14. In view of above discussion, the accused Mohd. Ishrar S/o Mohd. Ishtiyak is held guilty and is convicted for the offences punishable U/s 380 IPC and is acquitted of the offence punishable u/s 457/411 IPC.
15. Let the parties be heard on the point of sentence.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 20.08.2015 MM10 (SouthEast): Saket Courts:
New Delhi:20.08.2015
FIR No. 834/14
P.S. Jamia Nagar Page No.18 of 18
FIR No. 834/14
U/s 380/457/411 IPC
P. S. Jamia Nagar
State Vs. Mohd. Ishrar
20.08.2015
ORDER ON SENTENCE
Present. Learned APP for the state.
Accused Mohd. Ishrar produced from JC (in JC since 26.09.2014). Sh. Tej Narain LAC for accused.
Today the matter is fixed for orders / judgment.
Accused in convicted for the offence punishable U/s 380 IPC and is acquitted for the offence punishable U/s 457/411 IPC vide separate judgment of the even date.
At this stage, Ld. LAC for the accused requests that arguments on point of sentence be heard today as accused is in JC for past one year.
Submissions heard. Allowed.
Put up at 03:00 PM.
(SHEETAL CHAUDHARY PRADHAN)
MM10(SouthEast):Saket Courts:20.08.2015
At 03:00 PM
ORDER ON SENTENCE
Present. As above.
The matter is fixed for arguments on point of sentence on behalf of accused Mohd. Ishrar.
Heard on the point of sentence.
It is argued on behalf of convict Mohd.Ishrar, that he undertake not to repeat any such offence in future. It is stated that the convict is extremely poor Cont.....P2 FIR No. 834/14 P.S. Jamia Nagar Page No.19 of 18 FIR No. 834/14 U/s 380/457/411 IPC P. S. Jamia Nagar State Vs. Mohd. Ishrar :2: and be given a chance for reformation as he had exhibited good behaviour during his custody and during the trial period.
Ld. LAC for convict Mohd. Ishrar, submits that convict remained in JC for a total period of about 01 year. He further submits that the convict is the sole bread earner in their family and have family to support and request that a lenient view may be taken against him.
Submissions heard. Record perused.
In view of facts and circumstances of the case and considering the convict is of young age of about 27 years, he is sentenced to imprisonment already undergone by him for offences punishable U/s 380 IPC.
Accused Mohd. Ishrar be released from JC, if not wanted in any other case.
The articles seized during personal search of the accused be released to him as per personal search memo, if not already released.
Copy of judgment and order on sentence be given to convict free of cost. Personal bond furnished U/s 437A. Same is taken on record. File be consigned to Record Room after due compliance.
(SHEETAL CHAUDHARY PRADHAN) MM10(SouthEast):Saket Courts:20.08.2015 FIR No. 834/14 P.S. Jamia Nagar Page No.20 of 18