Delhi District Court
3.Title State vs . Ashraf @ Raju @ Bhola on 2 June, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. FIR No. 113/03, PS Bhajanpura
2.Unique Case no. 463197/2015
3.Title State Vs. Ashraf @ Raju @ Bhola
3(A).Name of complainant Sh. Qadir
S/o Chuttan
R/o H. No. D-121, Gali no. 3, Noor I
Illahi, Bhajanpura, Delhi.
3(B).Name of accused Ashraf @ Raju @ Bhola
S/o Shaukat
R/o Mohalla Thana Shikharpur, PS
Town Shikharpur, District
Bulandshahar, UP
4.Date of institution of chargesheet 28.06.2003
5.Date of Reserving judgment 26.05.2023
6.Date of pronouncement 02.06.2023
7.Date of commission of offence Between 14.04.2003 to 15.04.2003
8.Offence complained of U/s 380/457 IPC
9.Offence charged with U/s 457/380/411 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted u/s 380/457 IPC
Convicted u/s 411 IPC
12. Date of receiving of judicial file 28.06.2003
in this court
Argued by :-1. Ms.Deepika Singh, Ld. APP for the State.
2. Ms. Rinku Ld. LAC for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Qadir S/o Chuttan stating that between 14.04.2003 and 15.04.2003, some unknown person commited house trespass by breaking the State Vs. Ashraf @ Raju @ Bhola. Page 1 of 21 FIR No. : 113/03 locks of his house i.e. D-121, Gali no. 3 . Noore lahi, Bhajan Pura and dishonestly removed jewelry items including, Jhumar, Tika, Jhumka, Ring, ladies ring of gold, several Silver necklaces, Chhalla gold polished, Silver bangles (kade) gold polished and cash Rs 22.000/- along with some documents belonging to him. On the basis of the complaint, FIR bearing no. 113/2003, PS Bhajanpura was registered u/s 457/380 IPC. Thereafter, on 16.04.2003, a secret informer met the IO and told him that a boy was carrying some jewelery and wanted to sell the same which he doubted to be stolen property. Hence a raiding party was prepared and accused Ashraf was apprehended. On the basis of his disclosure statement, stolen property was recovered. After completion of investigation, chargesheet was filed u/s 457/380/411 IPC qua the accused.
2. On 28.06.2003, cognizance was taken and accused was summoned for the offence u/s 457/380/411 IPC. On 02.06.2006, charge was framed against the accused for the offence punishable u/s 457/380 IPC and in the alternative u/s 411 IPC to which he pleaded not guilty and claimed trial. Hence, matter was fixed for prosecution evidence.
3. Ct. Ratan Singh was examined as PW-1. He has deposed that on 15.04.2003, he was posted as constable at District Line, NE, and working as a photographer. On that day, on receiving call of SI Virender Singh, he reached at D -121, Gali no. 3, Nooreilahi, Bhajanpura, Delhi and took the photographs of the spot from different angles with his camera. The photographs are Ex. P1 to Ex. P5 and the negatives are exhibited as Ex. 6 to Ex. 10. He was cross examined by Ld. Counsel for the accused wherein he admitted he took the photographs at about 02.30 p.m.
4. Kadir Ahmad was examined as PW 2. He is the complainant and has deposed that he was working as cycle mechanic and ran a shop at Babarpur. On State Vs. Ashraf @ Raju @ Bhola. Page 2 of 21 FIR No. : 113/03 14.04.2003 he alongwith his famly went to Sangam Vihar, Loni after locking his house. On 15.04.2003, he came back to his house and saw that the lock of main gate of his house was intact. He opened the same and went inside and saw that the glass of the showcase kept on the ground floor was broken. When he went upstairs, he saw then that the locks of the boxes were also broken and every household article was scattered there. On further checking, he found that the jewelry kept inside the box were missing and also found that cash of about Rs. 22,000/- was also missing. The cash was in bundles of Rs. 10/-, 100/- and 50/- denomination. The bundles were wrapped in white paper. The bundles were have stamps of Kadir Cycle works, H. No. 105, Babarpur, Delhi-32. He stated that some documents were also missing. He immediately went to the PS and filed complaint in the matter and got recorded his statement Ex. PW2/A. Police officials came to his house and checked the same and found that jewelry articles including Jhumar, Tika, Jhumka, Ring, ladies ring of gold several silver necklaces, Chhalla gold polished, silver bangles (kade) gold polished were missing. He further deposed that on 16.04.2003, police officials came to his house along with the accused present in the court. (He correctly identified the accused). He further stated that the accused disclosed that he had committed theft in his house. So he along-with police officials and the accused went to DTC Bus depot, Yamuna Vihar near petrol Pump. Thereafter, at the instance of accused, his stolen articles and cash were recovered from a vacant plot after digging the soil at the instance of the accused. His articles were kept in cloth bag/thaila. Thereafter he along with the police officials and the accused with the recovered articles went to PS and he identified his articles. The said articles and the cash of Rs. 18,330/- were seized vie seizure memo Ex. PW2/B. He got released the said articles i.e. jewellery items and the cash by the order of the court on superdari vide superdarinama Ex. PW2/C. He proved the pointing out memo of his house which is Ex. PW2/D. He stated that till then he was not aware about the name of the accused. Thereafter, State Vs. Ashraf @ Raju @ Bhola. Page 3 of 21 FIR No. : 113/03 complainant produced jewelery articles of gold and sliver, which includes cash of Rs. 8,300/- containing bundles of Rs. 10/-, 100/- and 50/- denomination (the bundles of notes are having stamp of Kadir Cycle works, house no. 105, Babar Pur, Delhi-32), Jhumar, Tika, Jhumka, Ring, ladies ring of gold, several Silver necklaces, challa gold polished, Silver bangles (kade) gold polished. Jewelery articles. collectively were exhibited as Ex. P-1 and currency notes were collectively exhibited as Ex. P-2. He stated that he had spent Rs. 10,000/- on his illness, out of cash which he took superdari. He was cross examined by the Ld. Counsel for the accused wherein he stated that his statement was recorded at his house, but he did not remember the exact date. He admitted that the lock of main gate of his house was intact. He also admitted that the lock and the box were not seized by the police. The broken lock of the first floor was also found, but the police did not seize the same. He stated that police officials met him after one day of theft in his house. Police had apprehended the accused. He further conceded that 50-60 public persons were also present on that day but no statement of public persons was recorded. The police officials came to his house at about 9/11 a.m. and they reached at Yamuna Vihar Park at about 11.30 a.m. No public persons joined the investigation with the IO, however, suo motto they were present there. He admitted that accused used to reside in front of his house on rent. He denied that there was some dispute with the accused prior to alleged day of occurrence. He stated that he had never asked to the landlord of the accused to vacate his house because there was intrusion into their privacy. He conceded that he had no receipt of abovesaid articles, which he took on superdari. He admitted that he signed the documents in PS. He admitted that all the writing work was done in PS. They were at a distance of about 4 meter from the spot from where the police got recovered the case property at the instance of accused from a Park adjacent to petrol pump. He further deposed that police officials went on foot to recover the case property.
State Vs. Ashraf @ Raju @ Bhola. Page 4 of 21 FIR No. : 113/03
5. Sh. HC Promod Kumar was examined as PW 3. He has deposed that on 16.04.2003, he was posted at PS Bhajanpura as constable. On that day, he was present with SI Virender Singh Punia, HC Rishi Pal and Ct. Raj Kumar for the investigation of the present case. They were searching for the thief and the case properties in Vijay Park Area and then a secret informer met SI Virender Singh Punia and told him that a boy was carrying some jewelry and wanted to sell the same which he doubted to be a stolen property. Secret informer told them that the said boy was earlier seen in the Noor e Ilahi locality and if raid is conducted, then he can be apprehended. Then SI Virender Singh Punia asked 3- 4 passersby to be part of raiding party but they refused after telling their reasonable excuses. Thereafter, SI Virender Singh Punia prepared the raiding party with the present staff. Then they went to apprehend the accused with the assistance of the secret informer and at his instance, a boy who was going from Vijay parak to Noor E Ilahi was apprehended by IO/SI Virender Singh Punia. Then the IO interrogated the accused about the jewelry but he did not give satisfactory answer about the same. SI Vireder Singh then further interrogated in which he broke up and disclosed that the same was stolen one day ago from a house situated in Gali no. 3, Noor E Ilahi, Delhi. Thereafter, disclosure statement of the accused was recorded by SI Virender Singh Punia which is Ex. PW3/A. He then took us at the house i.e. H. No. D-121, Gali no. 3, Noor E Ilahi, from where he stole the articles and money where they met the complainant/owner of the house who also joined the investigation. The accused then pointed out the place from where he stole the said articles and money and pointing out memo is already Ex. PW2/D. Thereafter, accused took them to the place i.e. an empty ground near the petrol pump, in front of DTC Bus Depot where the accused pointed out where he concealed the stolen articles and money. The accused took out a polythene bag from a pit in which eight jewelry articles and Rs. 18,390/- cash were found. Thereafter, SI Virender Singh Punia State Vs. Ashraf @ Raju @ Bhola. Page 5 of 21 FIR No. : 113/03 prepared the pin pointing out memo and recovery memo of the same which is Ex. PW2/B and also prepared the pulanda of the same and sealed it with the seal of VSP and the seal after use was handed over to HC Rishi Pal. Thereafter, IO formally arrested the accused vide arrest memo Ex. PW3/B and personally searched vide memo Ex. PW3/C. The accused thereafter was taken to PS and sent to lock up and the case property was submitted to Malkhana. He correctly identified the accused and the case properties Ex. P1 and Ex. P2. He was cross examined by the LAC wherein he has deposed that accused was at a distance of about 20 ft when he was pointed out by the secret informer. There were other people also passing by when the accused was identified by the secret informer. Accused was standing separate when he was identified by the secret informer though no description of the accused was given by the secret informer. He conceded that public persons were available around the spot but despite request none joined. He also admitted that no notice in writing was issued nor their names or phone numbers noted down. He further stated that he was not aware if the secret information was reduced into writing by the IO or not. At the time of recovery he along with Virender Puniya, HC Rishi Pal, Ct. Raj Kumar and complainant namely Qadir were present. Despite personal search being offered, accused did not avail the same. However, this fact was not reduced into writing. He further stated that complainant Qadir met us at the spot though no notice was issued to him. Search memo, site plan, disclosure statement and pointing out memo was prepared at the spot. He also deposed that they recovered eight articles at the instance of accused out of which five articles were of gold and three articles was of silver. Additionally cash of Rs. 18,390/- was also recovered and the said cash was in the polythene.
6. SI Raj Kumar was examined as PW 4. He has deposed that on similar lines as PW3 and supported the case of prosecution. He also identified the accused as well as the case properties recovered at the instance of accused. He was cross State Vs. Ashraf @ Raju @ Bhola. Page 6 of 21 FIR No. : 113/03 examined by LAC wherein he stated that they left the PS for Vijay Park on foot. The distance between the PS and Vijay Park is about to One and Half KM and they took around 30 minutes while reaching there. He stated that he cannot tell if the IO of the case recorded the information given by the informer in writing or not. He stated that the IO had asked 2-3 pubic persons to join the investigation but none came forward. He admitted that IO did not serve any notice upon anyone of the public persons who refused to participate in the investigation. He stated that they stayed at Vijay Park for about 5-7 minutes. They were 4 persons in total besides informer. The secret informer was about 10 steps ahead who led them towards Yamuna Vihar, Bus Depot. The informer pointed out at around 7:45 pm and then they apprehended the accused. Ct. Rishipal and Ct. Pramod apprehended the accused first. The accused was inquired by the IO during which he told that on the intervening night of 14/15.04.2003 he had stolen some cash and jewellery. Thereafter, his disclosure statement was recorded by IO at Yamuna Vihar, petrol pump. The complainant was joined in the investigation and the accused was taken to the place of the incident where he pointed out the spot. There was no watchman or mali in the park. He stated that no public persons used to walk in the park from where the recovery of the stolen property was effected. He conceded that he cannot tell the colour of the poly-bag containing stolen property which the accused had produced after digging the pit. He stated that the sealing material was already available with the IO. He stated that five jewellery items were made of gold and three were made of silver though he could not recall if the serial numbers of the currency notes were mentioned in the seizure memo or not by the IO. He admitted that the place of recovery is a public place and the same is open for access to the public at large. He denied the suggestion that no public persons was asked to join the investigation or that he is deposing falsely. He further denied that the accused has been falsely implicated in the present case or that nothing has been recovered from the possession of the accused or State Vs. Ashraf @ Raju @ Bhola. Page 7 of 21 FIR No. : 113/03 at his instances.
7. ASI Rishi Pal was examined as PW 5. He has deposed that on similar lines as PW3 and supported the case of prosecution. He also identified the accused as well as the case properties recovered at the instance of accused. He was cross examined by LAC wherein he stated that he left the PS for searching at around 06:00 pm alongwith SI Virender Singh Punia, Ct. Rajkumar and Ct. Pramod. He stated that SI Virender Singh might have made the Departure Entry. He stated that at about 07:00 pm, they reached Vijay Park, Delhi. IO had asked the public persons to join the investigation at Vijay Park as well as at the place of recovery. The recovery of the stolen property was effected from the park in front of DTC Bus Depot., Yamuna Vihar, Delhi. He stated that the accused was apprehended at the pointing out of the secret informer but failed to tell tell the distance from where he pointed out. He also stated that at the time of recovery of the stolen property, the complainant was present. He admitted that he cannot tell about the denomination of the currency notes allegedly stolen from the house of the complainant. He stated that the accused himself removed the soil and got recovered the stolen property. The accused was taken to the PS at around 10:30 pm to 11:00 pm from the place of recovery. There were total 8 numbers of jewelry articles (made of gold and silver) and cash which were recovered from the park. He admitted that the place of the recovery of the stolen articles is a park i.e. public place. No notice to the public persons was served by the IO who refused to join the investigation. He denied the suggestion that no public persons was asked to join the investigation. He further denied that accused has been falsely implicated in the present case or that nothing has been recovered from the possession of the accused or at his instances.
8. WSI Saroj Devi was examined as PW 6. She has deposed that on 15.04.2003, State Vs. Ashraf @ Raju @ Bhola. Page 8 of 21 FIR No. : 113/03 she was posted at PS Bhajanpura as ASI. On that day, she was performing her duty at PS as a Duty Officer and her duty hours were from 08.00 a.m. to 04.00 p.m. On that day, at about 11.50 a.m., she received a complaint from complainant Mohd. Kadir for registration of FIR. On the basis of said complaint, she registered the present FIR. Copy of the same is Ex. PW6/A (OSR). Thereafter, she had handed over copy of FIR and original complaint to SI Virender Singh for further necessary action. She was not cross examined by Ld. Counsel for the accused despite opportunity being given
9. Retired ACP Sh. Virender Singh Punia was examined as PW 7. He is the IO of the present matter and deposed that on 15.04.2003, he was posted at PS Bhajanpura as SI. On the said day, investigation of the present case was handed over to him through DO. Thereafter, he along with complainant, namely, Kadir who was present at the police station got his complaint registered and he headed to the spot at instance of complainant. He then inquired from the complainant and inspected the spot where the present incident had occurred i.e. theft of the property from the house of the complainant located at D-121, Gali No.3, Noor-e-Ilahi, Bhajanpura. He also called the crime team accompanied with the photographer. Crime team inspected the spot though no chance print etc. got recovered. Photographer took the photographs already Ex. P1 (colly.). Witness correctly identified the said photographs. Thereafter he prepared the site plan Ex.PW7/A. Report Ex.PW7/B was given by the Crime Team which was prepared by SI Rohtash though the report was nil regarding the Ex./chance print from the spot. Thereafter, he recorded the statement of IC Crime Team, photographer and relieved them. Supplementary statement of complainant Mohd. Kadeer regarding the preparation of site plan was also got recorded and he was relieved thereafter. He tried to search the offender, however, none was found on the said day. Thereafter on 16.04.2003, he along with HC Rishi Pal, Ct. Raj Kumar and Ct. Pramod were searching for the accused persons State Vs. Ashraf @ Raju @ Bhola. Page 9 of 21 FIR No. : 113/03 involved in the present case and during the search, they reached at Vijay Park, Bhajanpura, Delhi. At about 7:15 PM, one secret informer met him and informed that one young boy who is present in Vijay Park is planning to sell some jewelry. Secret informer further informed that the said person was on his way from Vijay Park to Noor E Ellahi and if immediate raid is conducted, then he might be apprehended. On this, he requested 4-5 public persons to join the investigation and raiding party, however, none agreed and left the spot without disclosing their names and addresses. Due to shortage of time, no formal notice was served upon the persons who refused to join the investigation. Thereafter, he prepared a raiding party of the accompanied staff along with secret informer. Thereafter, they headed towards Noor-e-Ilahi at the instance of secret informer. When they reached near T-Point of noor e ilahi and Vijay Park, then the secret informer had pointed out towards the person who was going towards Noor E Ellahi from Vijay Park near Bhagat Singh Park opposite Yamuna Vihar Bus Depot., whose description he had given above. Immediately he with the help of accompanied raiding staff overpowered and apprehended the said person. He inquired from the boy who disclosed his name as Ashraf @ Raju @ Bhola (accused present in the court was correctly identified by the witness). He then interrogated the accused and arrested him vide arrest memo Ex.PW3/B and personally searched vide personal search memo Ex.PW3/C. On further interrogation, the accused disclosed his involvement in the present matter and thereafter he recorded his disclosure statement Ex. PW3/A. In his disclosure statement, he admitted his guilt regarding the commission of present offence. Thereafter, accused Ashraf pointed out the spot where he had committed theft and stole the property. Accordingly, they reached at the spot at House NO. D121, Noor e Ilahi, Bhajanpura, Delhi where the present offence had committed. Pointing out memo Ex.PW2/D was also prepared. At the spot the complainant Mohd. Kadeer also met him who was present at his above said home. Mohd. Kadeer was invited to join the further investigation of the present State Vs. Ashraf @ Raju @ Bhola. Page 10 of 21 FIR No. : 113/03 case. Accordingly, he joined the police party. Accused also disclosed that he had spent some cash amount which he stole from the above said house though the jewelry was hidden in a vacant ground opposite DTC bus depot, Yamuna Vihar. Thereafter, at the instance of accused Ashraf, he accompanied with the police staff and complainant reached at the place i.e. vacant ground opposite DTC bus depot adjacent to petrol pump Thereafter, accused produced one polythene bag from the ground after digging the same. The said plastic bag was taken into police possession and opened accordingly which was having one pair of silver bangle having golden polish and embedded with gems, one pair of anklets make silver, one pair of earrings made gold, one jhumur made gold, one tika made gold, one pair of jhumka made gold having black thread, one gold ring, one pair of silver jhal having gold polish, one bundle of Rs. 10,000/- (100X100 having denomination of Rs. 100/- currency note) which also bearing one paper slip having stamp of Mohd. Kadeer Cycle Works main Road, Babarpur, one bundle of Rs. 5,000/- (50X100 having denomination of Rs. 50/- currency notes) and three bundles of Rs. 1,000/- each (10X100 having Rs. 10/- denomination currency notes) also having paper slip and stamps. Beside this, some lose currency notes having denomination of Rs. 10/- and which were counted total 39 (10X39) total Rs. 390/- having Rs. 10/- denomination currency notes. Accordingly, total Rs. 18,390/- were recovered from the said polythene bag. The above said jewelery items which were given serial no. 1 to 8 in the seizure memo were kept in a polythene bag and further placed in a cloth after preparing a pullanda and the abovesaid cash amount was also placed in a polythene after preparing a pullanda with the help of cloth. The said pullandas were duly sealed with the seal of VSP. The said seal was handed over to HC Rishi Pal after its use. The said case property / sealed pullandas were taken into police custody and seized vide seizure cum pointing out memo already Ex. PW2/B. Thereafter, they came back to the PS alongwith the case property where the case property was deposited in Malkhana and accused was State Vs. Ashraf @ Raju @ Bhola. Page 11 of 21 FIR No. : 113/03 lodged there in lockup. He then recorded the statement of raiding party staff and complainant. He correctly identified the case property exhibited as Ex. P1 (colly) and P2 (colly). He was cross examined at length wherein he has deposed that the crime team called at the spot was headed by SI Rohitash Singh alongwith photographer Ratan Singh. The purpose of the same was to collect the chance prints/finger prints/any other scientific evidence and also to get the photographs of the spot. He stated that the secret informer did not inform him where the accused about to dispose of the stolen property. The secret informer pointed out towards the accused Ashraf @ Raju from a distance of 4-5 feet. It was a congested street. 5-6 people were walking in the street, when the secret informer pointed towards the accused. He admitted that he did not take any action against the public witness when they refused to join the investigation. He denied that immediately after the arrest of the accused, he was taken to DTC Bus Depot. He stated that after the accused was apprehended, on interrogation, he pointed out the spot from where he committed theft. Then, we went to the spot i.e. the house of the complainant. Then at the instance of the accused, recovery was effected from the ground, in front of DTC Bus Depot. The accused had kept the stolen property in a gadda in a vacant plot and the same was hidden by way of grass and sand. The ground was dug by hand by the accused. It was hidden roughly one feet in the ground. He stated that the sand was wet and therefore, no instrument was required for digging the ground. He admitted that he did not make the said spot part of the site plan. Personal search memo was prepared at the time of arrest and nothing was recovered from the personal search of the accused.
10.HC Rajeev was examined as PW 8. He has deposed the case property in the present matter i.e. two silver bangles having gold polish and stones, one pair of sample silver, one pair of gold earrings, one gold jhumer, one gold tika, one pair of gold jhumka having black thread, one female gold ring, one jhala of State Vs. Ashraf @ Raju @ Bhola. Page 12 of 21 FIR No. : 113/03 silver having gold polish and one bundle of currency notes of denomination of Rs. 100/- and 100 in number (covered in white paper and having stamp of kadeer Cycle works, H-105, Main Road, Babarpur, Delhi-110032), one bundle of 100 currency notes of denomination Rs. 50 each and three bundles of 100 notes each of denomination Rs. 10 each (covered in white paper having the aforesaid stamp) and 39 notes of Rs. 10/- each i.e. total amount of Rs. 18,390/- were deposited by SI Virender Singh on 16.04.2003 vide mud no. 2016/3. Certified copy of the same is Ex. PW8/A. In his cross examination, he admitted that he does not have personal knowledge of the facts and cannot comment whether the aforesaid property was deposited in seal or not.
11.Statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C was recorded on24.05.05.2023 wherein he denied the allegations in toto. He stated that he does not wish to lead defence evidence and has been falsely implicated in the present case. Thereafter, matter was fixed for final arguments. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
12. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law. Now, theft is defined under section 378 IPC and theft in dwelling house is defined under section 380 IPC. Both the provisions are reproduced hereunder:
Section 378 IPC: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Section 380 IPC: Theft in dwelling house, etc.--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 State Vs. Ashraf @ Raju @ Bhola. Page 13 of 21 FIR No. : 113/03 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
From the aforesaid definition it is clear that the essential ingredients of theft are:
a) Moving of moveable property out of possession of a person
b) Absence of consent of the person
c) Dishonest intention in so moving and at the time of moving
13. A person can be said to have dishonest intention if in taking the property it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It is further clear that the gain or loss contemplated need not be a total acquisition or total deprivation. It is enough if it is temporary retention of the property by the person so gaining or temporary keeping out of property from the person legally entitled. Hence, theft under Indian Penal code is different from English Law of larceny which contemplates permanent gain or loss (Ramesh Chander Sanyal Vs. Hiru Mondal (1890) 1LR 17 Cal 852 relied upon). Further, theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling is an aggravated form of theft because it intimidates causes fear to the people living in the house. Thus, for the offence punishable under section 380 IPC, the following facts are required to be proved by the prosecution:
a) Moving of articles out of possession of complainant
b) Such moving was without consent of complainant
c) Accused had dishonest intention in such moving
d) Articles were moved out of dwelling house of complainant
14. Now with respect to the offence of house trespass, the relevant sections are reproduced hereunder:
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"
State Vs. Ashraf @ Raju @ Bhola. Page 14 of 21 FIR No. : 113/03
442. House trespass.: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used 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".
Explanation. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass: Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass"
444. Lurking house-trespass by night: Whoever commits lurking house- trespass after sunset and before sunrise, is said to commit "lurking house-trespass by night".
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the 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.
15. From the above, it is clear that intention to commit an offence is an essential ingredient. Mere occupation even if illegal cannot amount to criminal trespass(1983 CRI. L. J. 173 Kanwal Sood v. Nawal Kishore relied upon). Intention to insult or annoy person in possession of property is essential ingredient.Criminal trespass would also cover act of unlawfully remaining in property belonging to another - But such act of remaining in property of another would be criminal trespass only if accompanied by criminal intent. Further if there is no evidence of criminal trespass, no offence of house trespass could be said to be established. It is also important that complainant must be in unquestionable possession of property at time of trespass alleged (1996 CRI. L. J. 256 State of Goa v. Pedro Lopes).
State Vs. Ashraf @ Raju @ Bhola. Page 15 of 21 FIR No. : 113/03
16. The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when S. 441 Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry. (AIR 1964 SUPREME COURT 986 "Mathri v. State of Punjab" relied upon).
17.Coming to the merits of the present case, it is observed that there is no material or witness qua the entry of accused in the house of the complainant or regarding the removal of articles from the house of complainant. There is no State Vs. Ashraf @ Raju @ Bhola. Page 16 of 21 FIR No. : 113/03 eyewitness of the incident. Complainant has categorically deposed that he was not present in the house when the offence was committed. No neighbour or any public has been brought on record to prove the entry of accused in the house of complainant. Therefore the question of intention for the entry does not arise. Only evidence relied upon the prosecution in this regard is the disclosure of accused Ex. PW3/A wherein he has admitted his involvement in the present matter. The said disclosure statement is reproduced hereunder:
"......ki 14/15/4/03 ki raat ko apni Dukaan dilli wale ki dukaan jismein Mai halwa parantha bechne ka Kaam karta hun k saamne k Makaan jo gali no 03 Noor elahi dilli mein hai K Bahar lage pipe se makaan ki chat par pahunch kar, Makan ki Kundi kholkar tatha ghar mein rakhe sandook ka tala todkar usmein rakhein sone v chandi ki jewarat tatha nakad kareeb 20- 22,000/- chori kar liye the. Usmein se kuch rupaye khana tatha kapde khareedne mein kharch kiye tatha aaj jewarat bachne ki firak mein tha. Jewar tatha nakdi maine DTC bus depot yamuna vihar k saamne khali pade ground mein chupa diye the. Mai jay mauka vaardat ki nishandeyi kara sakta hun tatha jagah jaha jewarat v nakdi chupayi gyi hai, ki nishan deyi karke baramad kara sakta hub"
18.The bold portion of the disclosure statement is only material which the prosecution has brought on record regarding the offence of theft and criminal trespass. But the said portion amount to confession to a police officer and therefore is hit by section 25 of Indian Evidence act. Hence, it is not admissible in evidence and cannot be read against the accused. None of the prosecution witnesses have made even a whisper regarding the allegations qua offences punishable under section 457/380 IPC. It is trite to state that the accused is presumed to be innocent until proven guilty. Burden to prove the guilt of the accused remains on the prosecution and the same is to be proved beyond reasonable doubt. There is no direct evidence regarding the fact that accused State Vs. Ashraf @ Raju @ Bhola. Page 17 of 21 FIR No. : 113/03 committed tresspass in the house of the complainant and removed articles from his possession with dishonest intention. Hence, the State has relied upon circumstantial evidence of recovery from the accused. However, recovery by itself is not conclusive proof of theft and tresspass. In appreciating a case based on circumstantial evidence, it is well settled that one circumstance by itself may not unerringly point to the guilt of the accused and it is the cumulative result of all the circumstances which are to be seen. Thus, there must be a chain of evidence where no reasonable ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused. In Bodh Raj V. State of Jammu & KashmirAIR 2002 SC 3164, Apex Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fully proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency
d) That the circumstances should, to a moral certanity , actually exclude every hypotheis expect the one proposed to be proved.
19. However, chain of circumstances is incomplete in the present matter. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. However, the circumstances are not of conclusive nature and tendency pointing towards the guilt of accused. Hence, I find that the prosecution failed to prove moving of articles from the dwelling house of complainant as well as the fact that complainant has committed trespass in the house of complainant.
State Vs. Ashraf @ Raju @ Bhola. Page 18 of 21 FIR No. : 113/03
20. Now moving to the alternative charge for the offence punishable under section 411 IPC. Prosecution is required to prove that the accused received stolen property having knowledge or reason to believe the same to be stolen property. Now stolen property is defined in section 410 IPC as under
410. Stolen property.--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
21. Now complainant in his testimony has categorically deposed that jewelry articles including Jhumar, Tika, Jhumka, Ring, ladies ring of gold several silver necklaces, Chhalla gold polished, silver bangles (kade) gold polished and cash of about Rs. 22,000/- (in bundles of Rs. 10/-, 100/- and 50/- denomination and wrapped in white paper having stamps of Kadir Cycle works, H. No. 105, Babarpur, Delhi-32) were removed from his house between 14/04/2003 and 15/04/2003 when he had gone alongwith his famly to Sangam Vihar, Loni after locking his house. On 15/04/2003, on coming back, he got to know about the same and he made a complaint Ex PW2/A in this regard and present FIR was lodged on 15.04.2003 itself. PW6 has deposed that the complaint was made at about 11:50 am on 15.04.2003. Hence, there is no delay in the lodging of the FIR. Further, PW3, PW4, PW5 and PW7 all have been consistent and stated that on 16.04.2003, information was received from a secret informant that a boy is looking to sell jewelry which appears to be stolen property. Hence, accused was apprehended. Further, it was pursuant to the disclosure of accused, that the IO got complainant joined in the investigation and case property was State Vs. Ashraf @ Raju @ Bhola. Page 19 of 21 FIR No. : 113/03 recovered at the instance of accused on 16.04.2003. Fact only to the extent that stolen property was hid at a vacant plot at 1 feet under the ground where general public could not have hid the same, is admissible in view of section 27 evidence act as consequential to the disclosure, the recovery was made.
Complainant has supported the version of prosecution that the next day of his complaint, police officials came to his house with the accused and then the accused took them to the place where he had hidden the stolen property i.e. vacant ground, in front of DTC Bus Depot. The accused had kept the stolen property in a gadda in a vacant plot and the same was hidden by way of grass and sand. It was hidden roughly one feet in the ground. Further, no suggestion has been put to the complainant or any other prosecution witness that the property recovered at the instance of accused was not the property of the complainant which was stolen. Also, no suggestion has been put that the property was infact of the accused himself. No material has been elicited in the cross-examination to come to the conclusion that the Police witnesses were inimical to the accused or had the motive to falsely implicate him. As held by the Supreme Court in the decision reported as (2009) 7 SCC 178 Karamjit Singh Vs. State of Punjab, testimony of the witnesses cannot be discarded merely because they are Police officials. Moreover, it was the accused himself who could have explained the circumstance as to how he came into possession of the said property and why it was hidden. Section 106 of Indian evidence act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. However, no explanation has been offered by the accused in this regard by putting suggestion to the complainant in cross-examination or by leading defence evidence in this regard. Hence, I find that the prosecution has successfully proved recovery of two silver bangles having gold polish and stones, one pair of sample silver, one pair of gold earrings, one gold jhumer, one gold tika, one pair of gold jhumka having black thread, one female gold ring, one jhala of silver having gold polish and State Vs. Ashraf @ Raju @ Bhola. Page 20 of 21 FIR No. : 113/03 one bundle of currency notes of denomination of Rs. 100/- and 100 in number (covered in white paper and having stamp of kadeer Cycle works, H-105, Main Road, Babarpur, Delhi-110032), one bundle of 100 currency notes of denomination Rs. 50 each and three bundles of 100 notes each of denomination Rs. 10 each (covered in white paper having the aforesaid stamp) and 39 notes of Rs. 10/- each i.e. total amount of Rs. 18,390/- at the instance of accused from vacant ground, in front of DTC Bus Depot where he had hid the same. Since no explanation has been led in this regard, therefore, adverse presumption has been drawn against the accused under section 114 (g) Evidence act that if evidence was led by accused regarding how he came into possession of the said articles which were stolen from the house of the complainant, then that would have gone against the accused. Hence, it is held that accused had knowledge or atleast reasons to believe that the articles in question were stolen property when he received the same and thereafter he hid the same in order to retain them. The concomitant of the aforesaid discussion is that the prosecution has successfully proved the ingredients of the offence punishable under section 411 IPC beyond reasonable doubt.
22. In view of the aforesaid discussion and findings, accused Ashraf @ Raju @ Bhola is convicted for the offence punishable under section 411 IPC. However, accused Ashraf @ Raju @ Bhola is acquitted for the offence punishable under section 380 IPC as well as 457 IPC as the chain of circumstances was incomplete and no evidence was led in this regard. Matter be listed for arguments on sentence. Previous conviction report if any and complainant and IO be summoned for the arguments on sentence. Copy of Digitally signed by RUPINDER RUPINDER SINGH judgment be provided free of cost to the accused. SINGH DHIMAN Date: 2023.06.02 DHIMAN 16:47:38 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 02.06.2023 Metropolitan Magistrate-01 KKD Courts, Delhi State Vs. Ashraf @ Raju @ Bhola. Page 21 of 21 FIR No. : 113/03