Delhi District Court
State vs Ram @Rahul @Lukka on 21 September, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, JUDICIAL MAGISTRATE
FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-018513-2023
IN THE MATTER OF:
STATE Vs. RAM @ RAHUL @ LUKKA
eFIR NO. 000779/2023
PS MEHRAULI
JUDGMENT
A) Sl. No. of the case : CR Cases 4572/2023
B) The date of commission of : In the intervening night of 08-
offence 09.07.2023
C) The name of the complainant : Parasram, S/o Sh. Ram Charan, R/o
H. No. A-13, Near Nanda Hospital,
Chhattarpur Extension, New Delhi.
D) The name and address of : Ram @ Rahul @ Lukka, S/o Sh.
accused Suresh, R/o H. No. 616, Rangpur
Pahari, Vasant Kunj, New Delhi.
E) Offence complained of : Sections 380/457/34 IPC and
Section 411 IPC
F) The plea of accused : Not Guilty
G) Final Order : Acquitted u/s 457/380/34 IPC and
u/s 411 IPC
H) The date of such Order : 21.09.2024
DATE OF INSTITUTION : 05.09.2023
DATE OF FINAL ARGUMENTS : 09.09.2024
DATE OF JUDGMENT : 21.09.2024
eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 1 of 14
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.09.21
16:52:38 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State against accused namely Ram @ Rahul @ Lukka, S/o Sh. Suresh. As per the charge- sheet, in the intervening night of 08-09.07.2023 in between 11.04 PM-05.30 AM at home i.e. within the jurisdiction of PS Mehrauli, the accused along-with one JCL in furtherance of his common intention, committed lurking house trespass at the aforesaid home of the complainant Parasram and thereafter committed theft of two mobile phones (detailed description as per the eFIR and complaint / statement) from the house of the complainant which was used for the purposes of human dwelling and thereby accused has committed offences punishable u/s 457/380/34 IPC.
2. It is further alleged that on 11.07.2023, at unknown time, at / near Nanda Hospital, Chhattarpur, New Delhi, accused was apprehended and blue colour mobile colour was recovered from possession of the accused (as per the seizure memo Mark X) and thereby committed an offence punishable u/s 411 IPC.
3. On the basis of the charge-sheet, the Court took cognizance of the offence on 01.11.2023 and the accused was supplied with copy of chargesheet alongwith documents in compliance of Section 207 Cr.P.C. The Court framed the charge against the accused for offences punishable under Sections 380/457/34 IPC and Section 411 IPC. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 2 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:52:46 +0530
4. In order to prove its case, the prosecution has examined the following witnesses:
(i) PW1 was Sh. Parasram;
(ii) PW2 was Ct. Kalu Ram; and
(iii) PW-3 was HC Chandram.
5. PW-1 Sh. Parasram deposed that he worked in a shop at Suman Chowk. On 08.07.2023, he came from the shop at around 10.30 PM and after having his dinner, he went to sleep. He woke up at around 05.00 AM and saw that his mobile phones were not on the charging point. He deposed that his room was located in the parking area of the building. The doors of the parking area and his room were opened. At around 06.30 AM, he asked the people residing in the same building whether they had seen his mobile phones that were put by him on charging. He had filed a complaint regarding theft of his mobile phone.
6. PW-1 Sh. Parasram further deposed that the two mobile phones that were stolen by unknown persons were of brand Vivo and Oppo A55. He deposed that the site plan was prepared at his instance which is Ex. PW-1/A. The complaint bearing his signature at point A is Ex. PW-1/B. He further deposed that the said complaint is not written by him but he signed the same. He received back his stolen mobile phones through the court orders. The related application for release of his phone along with his receiving is Ex. PW-1/C. The panchnamas is Ex. PW-1/D and the superdarinama is Ex. PW-1/E. Two photographs of the case property is Ex. PW-1/F (Colly).
7. When PW-1 was cross examined by Ld. defence counsel, he deposed that he eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 3 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA 16:52:52 Date: 2024.09.21 +0530 worked as a worker in a utensil shop. He further deposed that he and his wife were living in the room. There were people residing in the same building. He further deposed that people did not used to come at their room. He had put his mobile phones on charging point. Witness denied the suggestion that his mobile phones were on charging point and he left his mobile phones at some other places. He deposed that there was no window grill on the window of his room. Initially, he checked his mobile phones inside his house and when he could not find the same, he asked the persons who lived on the first floor of his building about his missing mobile phones.
8. PW-1 Sh. Parasram, in his cross-examination, denied the suggestion that his mobile phones were stolen by the people of the said building. He had not seen any person coming and going from his room at the night. He made online complaint on 10.07.2023 at around 11.00-12.00 PM. No police officials visited at his house on the day when he made complaint but he received a phone call from the police chowki. He further deposed that there are cameras present in the vicinity of his house. However, he did not provide any CCTV footage to the police. He voluntarily deposed that he had asked the neighbors to give CCTV footage of their cameras to the police. However, they declined to give. He also voluntarily deposed that neighbors stated that these are government cameras.
9. PW-1 further deposed in his cross-examination that the make of mobile was Oppo A55 and Vivo. The colour of Vivo mobile phone was red and that of the Oppo A55 was blue colour. Witness denied the suggestion that the mobile phones were not his. Witness denied the suggestion he had registered a false complaint. He eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 4 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.21 16:52:58 +0530 stated that he had the bills for both the mobiles and he can produce before the court whenever required. Witness further denied the suggestion that he implicated the accused falsely.
10. PW-2 Ct. Kalu Ram deposed that on the intervening night of 10-11.07.2023, he along with HC Chand Ram were on night patrolling duty. On that night, at around 02:00 AM, when he along with HC Chand Ram were near to Nanda Hospital, Chattarpur New Delhi, they saw two persons were going towards Suman Chowk, Chattarpur from Nanda Hospital in a suspicious condition. They asked the said persons i.e. accused and co-accused to stop. HC Chand Ram questioned the accused and his associate. He further deposed that accused and his associate did not provide the satisfactory answers. Thereafter, out of suspicion, they interrogated the accused and his associate. Accused and his associate revealed his names as Ram@ Rahul and Uday @ Idu respectively. Personal search of accused and his associate were conducted.
11. PW-2 Ct. Kalu further deposed that one mobile phone i.e. blue in colour Oppo was recovered from the right pocket of lower/pants of the accused and three other mobile phones (i.e. make One Plus, Lenovo and one LG) were recovered from left pocket of the lower of the accused that was worn by him at that time. He further deposed that the recovered mobile phones of brand Lenovo and LG were not in working condition. Thereafter, personal search was conducted for accused Uday@ Idu. Upon personal search of the accused Uday @ Idu, one red coloured MI mobile phone was recovered from right pocket of the lower/pants of the accused Uday that he was wearing at that time. PW-2 Ct. Kalu further deposed that eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 5 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:53:05 +0530 he along with HC Chand Ram asked the accused and his associate about the recovered mobile phones, however, the accused and his associate did not answer properly about the ownership of the said mobile phones.
12. PW-2 Ct. Kalu Ram further deposed that the accused persons tried to run away from the spot and they caught hold of both the accused persons. Thereafter, HC Chand Ram checked the status of the mobile phones. It was found by HC Chand Ram that the recovered mobile phones were stolen in some cases. Accused Uday was found to be a CCL. He further deposed that CW Officer SI Manoj was called by HC Chand Ram. Thereafter, SI Manoj interrogated CCL Uday and recorded his disclosure statement. He deposed that CCL Uday was apprehended by SI Manoj and accused Ram@ Rahul was arrested by HC Chand Ram after interrogation. IO seized the recovered mobile phones in the present matter. Thereafter, CCL Uday was handed over to his mother Sunita. PW-2 Ct. Kalu Ram had gone along with accused Ram @ Rahul for his medical examination.
13. PW-2 Ct. Kalu Ram further deposed that the accused Ram@ Rahul was sent to the police lock up. His statement u/s 161 Cr.P.C. was recorded by IO. The stolen mobile phones which were found to be stolen from the jurisdiction of PS Maidan Garhi. Thereafter, the recovered mobile phones were transferred to Malkhana, PS Maidan Garhi. The seizure memo of stolen mobile phones is Ex.PW2/A. Another seizure memo u/s 102 Cr.P.C. is Ex.PW2/B. The disclosure statement of accused Ram @Rahul is Ex.PW3/C. Arrest memo of accused Ram @ Rahul is Ex.PW3/D. PW-2 had correctly identified the accused in the court. He had also correctly identified the photographs Ex. PW-1/F (Colly).
eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 6 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:53:12 +0530
14. PW-3 HC Chandram deposed that on 10.07.2023, the complainant had filed an online eFIR regarding the theft of two mobile phones and the same eFIR number was marked on his name for investigation. Thereafter, he recorded the statement of the complainant and he prepared the site plan at the instance of the complainant. He further deposed that on 11.07.2023 at about 02.00 AM, he along-with Ct. Kalu Ram were on night patrolling duty on the road which goes towards Suman Chowk from Nanda Hospital. Thereafter, they saw two boys in a suspicious condition. The said persons started running away from there upon seeing them in police uniform. Both the accused persons were apprehended by him with the help of Ct. Kalu Ram. Upon inquiry, one accused revealed his name as Ram @ Rahul @ Lukka and CCL.
15. PW-3 HC Chandram further deposed that he conducted personal search of accused Ram @ Rahul @ Lukka. During personal search, one mobile phone make Oppo was recovered from his right pocket of lower and three mobile phones were recovered from his left pocket of lower. The mobile phone which was recovered from right pocket of his lower was found to be stolen in the present case. The remaining three mobile phones were found to be stolen in different FIRs registered at different PS. He further deposed that he arrested the accused persons and seized the case properties. Thereafter, he sent the accused along with Ct. Kalurm for his medical examination. Accused was sent to lockup.
16. PW-3 HC Chandram further deposed that on 11.07.2023, the accused was produced before the court from where he was sent to judicial custody. Thereafter, he sent a notice to PWD office to collect CCTV footages of the incident. After few days, he collected CCTV footages of the incident along-with certificate u/s 65B of eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 7 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:53:19 +0530 Indian Evidence Act from the office of PWD. He deposed that he had filed the charge-sheet in the present matter. Statement of complainant is Ex. PW-1/B. Site plan is Ex. PW-1/A. Seizure memo of stolen mobile phone is Ex. PW-2/A. Another seizure memo of mobile phone u/s 102 CrPC is Ex. PW-2/B. The disclosure statement of accused Ram @ Rahul is Ex. PW-1/C. He further deposed that the case property which was seized vide seizure memo Ex. PW-2/A has been released vide order dt. 04.08.2023 which is Ex. PW-1/C. He made formal arrest of accused Ram @ Rahul. The arrest memo is Ex. PW-2/D.
17. PW-3 HC Chandram further deposed that he made personal search of accused vide personal search memo Ex. PW-3/A. He seized the case property and he also received the CCTV footage of the incident. The 32 GB pendrive of which is attached by him during investigation in the charge-sheet. PW-3 HC Chandram correctly identified the the accused in the footage time between 01:49:21 AM midnight played in the court and stated that the accused can be seen coming out of the said premises at about 01:51:40 AM midnight. The said pendrive is Ex. PW- 3/B. PW-3 also correctly identified the accused present in the open court. He was duly cross examined by Ld. defence counsel.
STATEMENT OF ACCUSED & FINAL ARGUMENTS
18. Upon conclusion of prosecution evidence, statement of accused Abdul Jafir was recorded under Section 313 Cr.P.C. in which all incriminating material was put to him. The accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence.
eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 8 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:53:25 +0530
19. Thereafter, final arguments were heard. Ld. Counsel for accused has relied upon the inconsistencies and contradictions in the versions provided by the prosecution witnesses to stress upon the point that the prosecution case cannot be relied upon. Ld. Counsel has argued that the accused has already remained in judicial custody since a considerable time period. Ld. Counsel has accordingly prayed that the accused be acquitted and a lenient view be taken against him.
20. On the contrary, Ld. APP for the State has argued that the prosecution witnesses are consistent inter se and the present case is a fit case for conviction.
COURT OBSERVATION
21. Accused has been charged with offences under Sections 457/380/34 IPC and Section 411 IPC. At the outset, it is pertinent to note that Section 457 IPC provides for the punishment for the offence of 'lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment'. This offence can be more clearly defined by referring to Sections 441, 442 and 445 of IPC which provide for the definitions of 'criminal trespass', 'house-trespass' and 'house- breaking' respectively. The aforesaid provisions are provided herein below for ease of reference-
"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 eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 9 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.21 16:53:31 +0530 human dwelling or any building used as a place for worship, or as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house- trespass"."
"445. House breaking.- a person is said to commit "house- breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say--
First. - If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly. - If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. Thirdly. - If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly. - If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly. - If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Sixthly.-If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass"
22. Therefore, to prove the offence alleged under section 457 IPC, prosecution needs to establish that :-
a) the accused committed lurking house trespass (as defined in Section 442 IPC) or house breaking by night (as defined in Section 445 IPC) ;
b) such house-trespass/house-breaking was committed in order to commit an eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 10 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:53:38 +0530 offence punishable with imprisonment which in the present case has been alleged to be theft in a dwelling house.
23. Further, the accused has also been charged with Section 380 IPC i.e. Theft in dwelling house. The aforesaid provision is reproduced herein below for ease of reference -
"380. Theft in dwelling house.- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Theft has been defined under section 378 IPC as follows:
"378. Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft."
24. Lastly, the accused has been charged with offence u/s 411 IPC i.e. the offence of 'Dishonestly receiving stolen property'. For this purpose, the prosecution is required to necessarily prove that the accused was caught while being in possession of stolen property i.e. the mobile phones of the complainant.
25. At the outset, it is noted that the present case was originated with the registration of eFIR bearing no. SDMR000779/2023 dt. 10.07.2023. The statements of the complainant was recorded vide rukka dt. 10.07.2023 i.e. Ex. PW-1/B. A bare perusal of Ex. PW-1/B reveals that the complainant has no where mentioned the factum of seeing the accused persons entering his house or the fact of accused persons committing theft in his house. Hence, an eFIR was lodged by him on the eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 11 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.21 16:53:45 +0530 next day.
26. The complainant was examined before the court as PW1 on 20.02.2024. In his cross-examination, he has confirmed that he did not see any person coming in or going out from his room at night. He has further stated that no police officer visited his house after the lodging of the eFIR but he received a phone call from police station. In the entire testimony, PW1 / complainant has not testified in relation to the identity of the accused persons.
27. The only evidence which is coming on record in relation to offences under Sections 457 IPC or 380 IPC is the CCTV footage that has been placed on record as Ex. PW-3/B. The aforesaid CCTV footage was played in open court at the time of examination of PW3 / HC Chandram. When the footage was played in open court, it was noted that the witness had correctly identified the accused in the footage time between 01:49:21 AM to 01:51:40 AM. The witness had deposed that the accused can be seen entering the 'premises' and exiting the same in the footage.
28. It is pertinent to note at this stage that the witness did not identify the exact location / house in which the accused can be seen to have entered. There is nothing in the footage which may assist inadequately recognizing the house in which the accused is entering. Glaringly, the charge that has been framed against the accused also refers to the place of occurrence as 'home within the jurisdiction of PS Mehrauli' and not to the specific house of the complainant. Be that as it may, the natural benefit of such a lacuna accrues in favour of the accused.
29. This Court is constrained to note that no direct evidence / eye witness could eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 12 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA 16:53:52 Date: 2024.09.21 +0530 be placed on record for the purpose of proving of offences u/s 457/380 IPC. Although, the offence pertains to a time period that is late at night, the CCTV footage pertaining to the incident should have been adequately proved by the prosecution for the purpose of bringing home the culpability of the accused.
30. Lastly, the accused has been charged with the offence u/s 411 IPC as well. For this purpose, the prosecution has examined PW2 Ct. Kalu Ram and PW3 HC Chandram. It can be noted from their testimonies that PW2 and PW3 caught hold of the accused persons at the main road of the Nanda Hospital to Suman Chowk, Chhattarpur which is a populated area. It can be seen that whilst the IO and his companion police officer endeavoured to collect the CCTV footage pertaining to a different location, the police officers failed to record the process of seizure and recovery by way of a videography / photography. It is further noted that no respectable inhabitant / resident of the locality was joined in the investigation despite of the place of recovery being an inhabited area.
31. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution.
32. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accused Ram @ Rahul @ Lukka, S/o Sh. Suresh is accordingly acquitted for the offences under eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 13 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.21 16:53:59 +0530 Sections 380/457/34 IPC and Section 411 IPC.
33. Let bail bonds / surety bonds be furnished by the accused under Section 437A CrPC.
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA 16:54:04 +0530
Date: 2024.09.21
Announced in Open Court (AVIRAL SHUKLA)
on 21.09.2024 JMFC-05, South District/21.09.2024
Certified that this judgment contains 14 pages and bears my signatures at each page. Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2024.09.21 16:54:09 +0530 (AVIRAL SHUKLA) JMFC-05, South District/21.09.2024 eFIR No.000779/2023 State Vs. Ram @ Rahul @ Lukka Page No. 14 of 14