Delhi District Court
State vs . Ripon @ Rippan on 3 December, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Ripon @ Rippan
FIR No. 39/2013
U/s 380/454/411 IPC
P.S. G.K.1
J U D G M E N T
Serial No. of the Case : 60/2A/14
Unique Identification No. : 02406R0157532013
Date of Institution : 30.05.2013
Date on which case reserved for
judgment : 20.11.2014
Date of judgment : 03.12.2014
Name of the complainant : Shri Pradeep Kr. Bhasin
s/o Shri Khairati Lal Bhasin
st
r/o N241, 1 Floor, G.K.1
New Delhi
FIR No. 39/2013
P.S. G.K.1 Page No.1 of 19
Date of the commission of offence : 26.03.2013
Name of accused : Ripon @ Rippan
s/o Shri Ishaq
r/o Jhuggi No.33, Pahari No.
1, Taimur Nagar, New
Friends Colony, New Delhi.
Offence complained of : U/s 380/411/454 IPC
Offence charged of : U/s 380/411/454 IPC
Plea of the accused : Pleaded not guilty.
Final order : Convicted for offences
punishable under Section
380/454 IPC
Date of Institution : 30.05.2013
Date on which case reserved
for judgment : 20.11.2014
Date of judgment : 03.12.2014
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. 39/2013 P.S. G.K.1 Page No.2 of 19 registered on a complaint of the complainant Shri Pradeep Kumar Bhasin stating that during the holidays of Holi, complainant on 26.03.2013 at about 02:30PM along with his wife and daughter left to visit Vaishno Devi, Jammu & Kashmir and returned in early morning at 05:40AM on 31.03.2013. Upon reaching, complainant found that the locks of the main gate were broken and the lights inside the house were also switched on and the articles of the house were all scattered, therefore, he called the police and crime team reached at the spot and he found that one gold chain of about 50 gram, one diamond ring, 50 silver coins, one silver biscuit, four silver glasses, two silver bowls, two silver idols of Lord Ganesh and about Rs.80,000/ cash were stolen, hence the present complaint.
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 380/411/454 IPC to which he pleaded not guilty and claimed trial.
FIR No. 39/2013 P.S. G.K.1 Page No.3 of 19
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as ten (10) witnesses in order to prove its case.
PW1 Shri Pradeep Bhasin (the complainant) deposed that on 31.03.2013 at about 05:40PM he along with his wife and daughter reached at his residence back from Vaishno Devi which he had left on 26.03.2013, that is when he saw the lights of his house was switched on and gates were opened and locks were broken. Thereafter he entered the house and found that all the household articles were scattered and all almirahs were opened. Seeing the same, he immediately called the police who reached the spot and photographed the same. Thereafter, crime team also inspected the spot and the complainant found one gold chain (15 gram), one diamond ring, 50 silver coins, four silver glasses, cash around Rs.19,000/ etc. were missing. Upon which his statement was recorded vide Ex.PW1/A. Thereafter, he also informed the police regarding the theft of other articles including one mobile phone (makeNokia), one black berry mobile phone, one Samsung phone, three cameras among which two were imported and one gold pendent. Later the complainant got to know that the stolen articles have been recovered.
During the crossexamination, PW1 stated that the complaint Ex.PW1/A was not in his handwriting and he has not handed over the bills of FIR No. 39/2013 P.S. G.K.1 Page No.4 of 19 stolen articles to the police and it was correct that the articles stolen were easily available in the market. He further stated that police reached the spot after about 1520 minutes and took about 0810 photographs and he was informed on the same day that the stolen articles were recovered and same were not shown to him by the police in the police station. He further stated that two CCTV cameras were installed on the staircase and maingate and the same were installed by the owner of the ground floor. Further the crime team obtained some finger prints from the spot and inquiry to the present matter was also made by the owner. Further he has not provided the number or denomination of currency notes to the police which were stolen.
PW2 Smt. Renu (wife of the complainant) has reiterated the same facts as PW1. PW2 stated that she had joined the TIP proceedings and identified the stolen articles vide Ex.PW2/A, the same were two cigarette lighter, one samsung mobile phone, one gold ring, one silver sari key ring, one silver brotch/tika, one silver biscuit, six silver rings and one artificial top PW3 Shri Rajender Singh Singhla deposed that he did not remember the date or month of the incident but it had happened in the year 2013 and he had installed a CCTV Camera outside his house in the name of his wife and during investigation the police official had seen the CCTV footage of the incident and the same was later copied in the pendrive and FIR No. 39/2013 P.S. G.K.1 Page No.5 of 19 statement was recorded by the police.
During the crossexamination, PW3 stated that he did not know regarding the theft in the house of the complainant.
PW4 Shri Shekhar (Assistant Manger from Cease Fire Industries) deposed that on 29.05.2013 he had gone to house of Mamta Singhal at N241, G.K.1 at the request of IO and taken CCTV footage of 30.03.2013 from 12:40PM to 02:00PM in a pendrive from DVR which was installed by the company of PW4 and the same CCTV footage was converted into two rewritable CDs which were handed over to the IO and that he had not tempered with the CDs. The same were Ex.P1 & Ex.P2.
During the crossexamination, PW4 stated, he can identify from where the CCTV footage has been taken and the same shows the camera Number and its particular, however, he did not remember whether any camera number is particularly visible in the CCTV footage.
PW5 Ct. Arvind deposed that on 31.03.2013 he was posted at P.S. Kotwali P.P. Red Fort and on that day he was on patrolling duty along with HC Sudhir at Chatta Rail Chowk and during picket duty he saw that accused was coming from the side of Hanuman Mandir towards Old Delhi Railway Station and upon seeing the police he started moving back and on suspension, PW5 apprehended the accused upon instruction of HC Sudhir FIR No. 39/2013 P.S. G.K.1 Page No.6 of 19 and on inquiry accused failed to give any satisfactory answer and at that time on cursory search a sum of Rs.43000/, a gold chain, rings, ear rings and some silver ornaments were recovered from his possession and thereafter accused disclosed he had stolen the same from G.K. The recovered articles were seized vide memo Ex.PW5/A and disclosure statement of accused was recorded vide Ex.PW5/A. During the crossexamination, PW5 stated, no public person was joined as witness at the time of recovery and at the time of recording of disclosure statement. He further deposed that it was difficult to identify the currency notes without their number and he did not remember, if IO had put any specific identification mark on the currency notes.
PW6 Ct. Ajay Kumar deposed that on 30.03.2013 while he was posted as constable, he joined the investigation along with IO SI Braham Dutt and accused was taken in police custody. He further deposed that they searched for the coaccused but he could not be found and thereafter they returned to the police station. Thereafter, accused had taken them to the place where he committed the offence and thereafter IO recorded his statement.
During the crossexamination, PW6 stated, he did not remember the date when he first joined the investigation of the present FIR No. 39/2013 P.S. G.K.1 Page No.7 of 19 matter. However, at that time he was present at the police station and he had joined investigation with the IO only once. Further he did not remember as to on which date his statement was recorded but he had signed the sime.
PW7 Ct. Vikash deposed that on 01.04.2013 while he was posted at P.S. G.K.1, he joined investigation with IO and had gone along with IO SI Braham Dutt to Tis Hazari Courts where accused was to be produced and IO sought permission for interrogation of the accused and thereafter, accused was interrogated, his disclosure statement Ex.PW7/A was recorded and accused was formally arrested vide memo Ex.PW7/B. IO had sealed the shoes of the accused in white cloth pullanda with the seal of B.D. and seized the same vide Ex.PW7/C which was deposited at malkhana and IO had recorded his statement.
During the crossexamination, PW7 stated, he along with IO reached at Tis Hazari at about 01:30PM and accused was arrested at about 02:30PM.
PW8 HC Sudhir deposed that on 31.03.2013 while he was posted at P.P. Red Fort P.S. Kotwali along with Ct. Arvind and was on picket duty in the area of SPM Marg, Near Chatta Rail that is when at about 07:30PM the accused was coming from side of Hanuman Mandir Nagpal Dairy and was going towards Purani Delhi Railway Station and the accused FIR No. 39/2013 P.S. G.K.1 Page No.8 of 19 started turning back on seeing the police therefore, upon suspicion he was apprehended by Ct. Arvind and PW8 conducted the personal search of accused, upon which a cash amount of Rs.43,100/ hidden inside the shirt of the accused, some gold ornaments and silver was recovered from his pocket of trouser and a mobille phone (makeSamsung) was also recovered and upon recovery could not give any satisfactory answer and after interrogation his disclosure statement Ex.PW8/A was recorded. The recovered articles were seized U/s 102 Cr.P.C. vide Ex.PW8/D and accused was arrested U/s 41.1 (d) Cr.P.C. vide memo Ex.PW8/C and his personal search was conducted vide memo Ex.PW8/D and prepared Ex.PW8/E. Thereafter, information was sent to senior official since accused had informed regarding the commission of offence of theft at G.K.1. Subsequently PW8 handed over the concerned document to the IO after sending information to P.S. G.K.1. IO recorded his statement U/s 161 Cr.P.C.
During the crossexamination, PW8 stated, the place from where the accused was arrested is a busy road and public persons were passing through, none of them joined the investigation. Further he has stated that no one had agreed to join the same and he had not served any notice upon them for refusing. Further disclosure statement of the accused was recorded by him at the spot and even at that time none of the public persons FIR No. 39/2013 P.S. G.K.1 Page No.9 of 19 were joined. PW8 further stated that the information to chowki incharge was sent at about 08:00PM and he had reached the police station at about 09:00PM and no CCTV camera are installed on the road. Further, no case property was shown to him and currency notes could not be identified without the serial number. Further, he sealed the currency notes at the spot and after sealing the same had handed over the seal to Ct. Arvind but no memo in respect of handing memo was prepared. Further he had noted down the name of the court on the kalandra at the spot and all the documents prepared by him at the post. No addition or alteration was made by him on the document prepared by him at the spot. It is correct that the kalandra was prepared by him on 01.04.2013 and DD entry No.37 PP was in his handwriting. Personal search and arrest memo of accused was prepared on 31.03.2013 and no specific identification mark was put by him on the case property recovered and he had noted down the mobile number and serial number. Further case property was deposited in malkhana but he did not remember the exact time of the same. Further P.S. G.K.1 was sent information on 31.03.2013 and accused was arrested in the court on 01.04.2013.
PW9 SI Braham Dutt deposed that on 31.03.2013 while he was posted at P.S. G.K.1. On that day, at about 06:00AM upon receiving DD No. FIR No. 39/2013 P.S. G.K.1 Page No.10 of 19 8A regarding theft in house, he reached the spot at H. No.N241, First Floor G.K.1, the house was found ransake and upon seeing the same PW9 called the mobile crime team for inspection of house. Crime team reached the spot and inspected the house. During which no chance print was found but the photographs of the house were taken and PW9 recorded the statement of the complainant and endorsed the rukka Ex.PW9/A and went to the police station for registration of FIR. After getting the FIR registered and upon receiving information in DD no.52B regarding recovery of stolen property in the area of P.P. Lalquila from accused. Accused was produced at Tis Hazari Courts by the concerned police station and he went to Tis Hazari Courts and with prior permission of the court interrogated the accused, recorded his disclosure statement vide Ex.PW7/B and seized the shoes of the accused vide Ex.PW7/C and formally arrested the accused vide memo Ex.PW7/B and sought the police remand of the accused which was initially declined by the Ld. MM in Tis Hazari with direction to put the same request before concerned court. Thereafter, on 02.04.2014 accused was produced before the concerned MM and two days police custody remand was sought and accused was interrogated and subsequently his disclosure statement Ex.PW9/B was recovered. Accused in his disclosure statement had named coaccused Javed and thereafter he was also searched but could not found and thereafter FIR No. 39/2013 P.S. G.K.1 Page No.11 of 19 at the instance of the accused pointing out memo Ex.PW9/C was prepared. Thereafter, PW9 obtained the concerned document from IO of P. P. Lalquila and obtained the custody of recovered articles from P.S. Kotlwali P.P. Laliquila through handing over memo Ex.PW9/D. During the investigation on 29.05.2013, PW9/IO had seized the CDs of CCTV footage vide seizure memo Ex.PW9/E, in the CCTV footage accused is visible entering the house at about 12:40PM and leaving the house at 02:10PM on 30.03.2013. The TIP proceedings were conducted and complainant identified all the articles except gold chain and photocopy of currency notes were Ex.P1. Thereafter, statement of witnesses were recorded and site plan was prepared at the instance of complainant Ex.PW9/F. Photographs were correctly identified by witness (CD was played in the court in which the accused was visible while entering the building where the house is situated and CD was Ex.P1. Another CD was played of the main road outside the building where the house is situated and the offence was committed and accused was clearly visible in the footage, the same was Ex.P2).
During the crossexamination, PW9 stated, he reached the spot at around 06:30PM and had remained there for about one & half an hour and no chance print could be traced out and on the same day, he received the information regarding recovery of stolen articles. No distinct mark of FIR No. 39/2013 P.S. G.K.1 Page No.12 of 19 identification were available on the alleged recovery articles and has not flashed any wireless message to all SHOs regarding the present incident. Further he had not personally visited the place of recovery had not prepared any site plan of the said place and had not written any serial number of currency notes and photocopies of currency notes were placed on record. He had not prepared the sketch of gold chain as the recovery was effected by other police official of P.S. Kotwali. He did not remember how many articles were brought by him to the court for the purpose of mixing during TIP proceedings. No distinct mark was available on the alleged recovered shoes.
PW10 SI Pawan Kumar deposed that on 29.05.2013 while he was posted at P.S. G.K.1 he was asked by IO SI Braham Dutt to join the investigation and on that day Mr. Shekhar from complainant side had produced the CCTV camera footage in the CD of the concerned day to the IO which was seized in his presence vide Ex.PW9/E. During the crossexamination, PW10 stated, he did not remember the time when he joined the investigation and he did not remember what was written on disc and of what brand it was the CD was not sealed by IO since he required to see the same for purpose of investigation and the CD was handed over by the complainant at the police station. FIR No. 39/2013 P.S. G.K.1 Page No.13 of 19
Vide order dated 08.05.2014, the accused has admitted the genuineness of factum of FIR of the present FIR and TIP proceedings under Section 294 Cr.P.C., the same are Ex.PA1 & Ex.PA2.
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 where he admitted regarding the commission of offence and stated that the same was committed by him under the influence of liquor.
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 FIR No. 39/2013 P.S. G.K.1 Page No.14 of 19 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 454 IPC prosecution was required to establish that the accused committed house trespass by entering into it unlawfully and such entry was lurking i.e. surreptitious and accused committed the house tress pass by effecting his entry into the house or any part thereof through a passage made by himself or through any passage not meant for human or by opening any lock, or by using criminal force and committing an offence or by any passage which he knows to be fastened against such entrance or exit which has been unfastened by him or his abettors. In addition to this it is necessary to establish that the dominant intention of entry was to cause annoyance, intimidation or insult.
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 is clearly visible in the CCTV footage recorded and therefore the two aspects to be proved by the prosecution that the accused committed lurking house FIR No. 39/2013 P.S. G.K.1 Page No.15 of 19 breaking and he did so in order to commit theft stands proved.
9. On the other hand, the Ld. Counsel 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 far as the date of offence was concerned and also the articles complained to be stolen by the complainant in his complaint are different from the recovered articles and the CCTV footage allegedly recorded in the present matter was taken on 29.05.2013 more than a month after the incident and all the witnesses are planted and the accused has been falsely implicated and therefore,is liable to be acquitted. It is further argued that recovery witness PW5 & PW8 have deposed different amount recovered from the possession of the accused which again castes a shadow on the story of prosecution.
10. I have heard Learned Counsel 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 380/411/454 IPC and since the offence U/s 380 IPC & Section 411 IPC are not of same kind, and they can only be read alternatively FIR No. 39/2013 P.S. G.K.1 Page No.16 of 19 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 recovered from the possession of the accused, the same day. 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 during the TIP proceedings correctly. 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 454 IPC two ingredients which were required to be established by the prosecution were that the accused committed lurking FIR No. 39/2013 P.S. G.K.1 Page No.17 of 19 house trespass or house breaking and secondly he did so 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 was established after considering the CCTV footage placed on record where the accused is seen entering the premises of the Complainant the same was established after seeing the testimony of PW3 & PW4 and also the fact that the stolen articles were recovered from the possession of the accused at the instance of accused from his place of residence. Accordingly, offence U/s 454 IPC stands proved as the accused entered the premises by breaking the lock of the house of the complainant with intention to commit theft.
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 Ripon @ Rippan is FIR No. 39/2013 P.S. G.K.1 Page No.18 of 19 held guilty and is convicted for the offences punishable U/s 380/454 IPC.
15. Let the parties be heard on the point of sentence.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 03.12.2014 MM10 (SouthEast): Saket Courts:
New Delhi:03.12.2014
FIR No. 39/2013
P.S. G.K.1 Page No.19 of 19