Delhi District Court
State vs . Vinay @ B.D. on 21 November, 2019
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IN THE COURT OF SH. FAHAD UDDIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.258/18
PS Prasad Nagar
State Vs. Vinay @ B.D.
U/s 457/380/511 IPC
Unique Case ID No. 14705/18
JUDGMENT
(a) Sr. No. of the Case 14705/18
(b) Date of offence 16.09.2018
(c) Complainant Rajeev Kumar
(d) Accused Vinay @ B.D
S/o Puran Chand
R/o H.No. 16/279H, Bapa Nagar, Karol
Bagh, Delhi.
(e) Offence U/s 457/380/511 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Convicted
(h) Date of Institution 01.11.2018
(i) Date when judgment 21.10.2019
was reserved
(j) Date of judgment 21.11.2019
FIR No. 258/18
PS Prasad Nagar
State Vs. Vinay @ B.D. Page No.1 of 13
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BRIEF FACTS AND REASONS FOR SUCH DECISION:-
The present FIR was registered at PS Prasad Nagar against accused Vinay @ B.D. S/o Puran Chand for the offence U/s 457/380/511 IPC.
1. It is the allegations against the accused that on 16.09.2018, at about 05:00am, at 6319/6, Second Floor, Padam Singh Road, Dev Nagar, Karol Bagh, Delhi within the jurisdiction of PS Prasad Nagar. The accused tried to trespass in the godown belonging to the complainant Rajiv Kumar by breaking open the window in a lurking manner in order to commit theft and the worker namely Kishori Lal apprehended the accused in the said godown and the accused in this manner committed an offence punishable u/s 457/380/511 IPC.
2. After completion of investigation, chargesheet was filed against the accused u/s 457/380/511 IPC on 01.11.2018. Cognizance of the offence was taken, copy of chargesheet was supplied to the accused person and after compliance of provisions of Section 207 CrPC , vide order dated 04.02.2019 charge against the accused was framed for the offence u/s 457/380/511 IPC, to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence:-
3. In order to prove the case against the accused person, the prosecution got examined 6 witnesses and relied upon the following documents:-
(I) Arrest memo Ex.PW1/A, Personal Search Memo Ex.PW1/B and disclosure statement of the accused as Ex.PW1/C.
(ii) Complaint made by the complainant Ex.PW2/A and site plan as Ex.PW2/B.
(iii) FIR no.258/18 dt. 16.09.2018 PS Prasad Nagar as EX.PW5/A, endorsement on rukka is Ex.PW5/B and certificate u/s 65B Indian Evidence Act as Ex.PW5/C. FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.2 of 13 3
(iv) Rukka Ex.PW6/A
4. PW1 is Ct. Kuldeep PS Prasad Nagar, Delhi who deposed that on 16.09.2018 he was posted at PS Prasad Nagar as Constable. At about 05:00am he was in the PS when the complainant had brought the accused who was apprehended by him reporting that accused was trying to steal goods from the godown of the complainant. After having the complaint recorded by the IO, the accused was arrested vide arrest memo Ex.PW1/A. Accused was then personally searched vide personal search memo Ex.PW1/B. The disclosure statement of the accused was got recorded as Ex.PW1/C. Thereafter IO had recorded his statement at the PS. Accused was correctly identified by the witness during examination.
5. In his cross examination by Ld. LAC for accused , PW1 stated that he was on duty from 08:00pm to 08:00am on the date of incident. The complainant had produced the accused at the PS and was accompanied with two other persons. He did not remember the name of the persons who had accompanied the complainant. As per the statement of the complainant nothing was recovered from the possession of the accused. PW1 alongwith SI Rambir returned to the site. He alongwith SI Rambir and complainant returned to the site and site plan was prepared at the site. He stated that he did not remember the time of the arrest of accused. No other material fact was deposed to by PW1.
6. PW2 is Sh. Rajiv Kumar (Complainant), who deposed that he had a godown bearing no. 6319/6, IInd Floor, Padam Singh Road, Karol Bagh, Delhi. His two workers namely Alam and Kishori Lal used to slip at the godown during the night time. On 16.09.2018, at about 05:00am Kishori Lal called him and informed him that one person had broken into the godown through the window at second floor and was trying to steal away the goods lying there. On his informing he FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.3 of 13 4 reached at his godown and saw the accused , who was apprehended by his worker. He alongwith 2-3 local persons took the accused to the PS and filed his complaint against the accused, who was trying to steal goods from his godown. The accused was correctly identified by the witness. The police had recorded his complaint Ex.PW2/A and on his complaint the FIR was registered. The police had prepared the site plan at his instance Ex.PW2/B. The accused was also arrested in his presence vide arrest memo already Ex.PW1/A. The accused was personally searched vide search memo already Ex.PW1/B.
7. In his cross examination by Ld. LAC for accused PW2 stated that about 03:00am the accused had tried to enter the godown and thereafter he had received a call from his employee regarding the same. He had received the call from his landline number at the godown. The name of local persons who had reached at the spot on his call were Naveen, Kamal, Dinesh, Alam and Kishore. He had taken the accused to the PS in his personal vehicle. The police had called him and obtained his signatures on all the relevant documents which were prepared at the PS. The site plan was prepared at the PS at his instance. The police had gone in his godown for investigation, however he had not accompanied them there. PW2 denied the suggestion that accused was not apprehended from his godown. No other material fact was deposed to by PW2.
8. PW3 is Alam who deposed that at the time of incident, he was working in godown as a labour. His godown number is 6319, Second Floor. After completing their work he and Kishori Lal were sleeping in the same godown at night. On 16.09.2018 at about 03:00am they were sleeping there. The accused entered in their godown from the window. The accused was correctly identified by the witness. PW3 stated that the room was dark and accused feet were touched with the feet of Kishori. After that he had woken up and PW3 also woke up and they caught hold the accused and make a call to their owner Rajiv FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.4 of 13 5 Kumar. After some time Rajiv Kumar had come alongwith Sharma ji, Naveen and with one gatekeeper to the godown. After that the complainant Rajiv Kumar lodged a complaint in PS Prasad Nagar and handed over the accused to the Police official.
9. In his cross examination, PW3 stated that he was working in the godown from last 11-12 years. He did not have any salary slip or any working receipt issued from the owner of the godown. Around 11-12 people were worked with them in the same godown. No other people except him and Kishore were sleeping in the said godown. There were 2-3 windows in the said godown but they were closed by a glass. They called the owner of the godown Rajiv Kumar with the receiver. Rajiv Kumar, the owner of the godown came back after 2 hours. He came to the godown by his own vehicle but PW3 did not know the number of the vehicle. The accused entered in the godown around 02:45am. The police officials from PS Prasad Nagar visited the godown at around
12. PW3 stated that no paper was prepared at the site in his presence. He denied the suggestion that he was not present at the site when the accused was apprehended and that he made a false complaint against the accused. No other material fact was deposed to by PW3.
10. PW4 is Kishori, who deposed that at the time of incident he was working in godown as a labour. His godown number is 6319, Second Floor. After completing his work he and Alam were sleeping in the same godown at night. On 16.09.2018 at about 02:30-03:00am they were sleeping there, the accused entered in their godown from the window. The accused was correctly identified by the witness. PW4 stated that the room was dark and accused foot was touched on his feet. After that he had woken up and Alam also woke up and they caught hold the accused and made a call to their owner Rajiv Kumar. After some time Rajiv Kumar came alongwith Sharma ji, Naveen and with one gatekeeper at the godown. After that the complainant Rajiv FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.5 of 13 6 Kumar lodged a complaint in PS Prasad Nagar and handed over the accused to the police official.
11. In his cross examination, PW4 stated that he was working in the godown from last 11-12 years. He was not having any salary slip or any working receipt issued from the owner of the godown. Around 11- 12 people were working with them in the same godown. No other people except him and Alam were sleeping in the said godown. There were 2-3 windows in the said godown but they were closed by a glass. They called the owner of the godown Rajiv Kumar with the receiver. Rajiv Kumar, the owner of the godown came back after 2 hours . He came to the godown by his own vehicle but PW4 did not know the number of the vehicle. The accused entered in the godown around 02:45am. The police officials from PS Prasad Nagar visited the godown at around 12. PW4 stated that no paper was prepared at the site in his presence. He denied the suggestion that he was not present at the site when the accused was apprehended and that he made a false complaint against the accused. No other material fact was deposed to by PW4.
12. PW5 is ASI Suresh Kumar, 7th Batallion, who deposed that on 16.09.2018 he was on duty at Prasad Nagar as DO from 09:00am to 05:00pm. On the day of incident at about 09:10am SI Rambir presented the rukka to him. On the basis of which he got registered FIR Ex.PW5/A. The FIR was got registered through computer installed at the PS. The said computer was under his lawful control at that time and the FIR was registered on the basis of Tehrir. The computer was being used in routine manner for similar purpose. After registration of FIR printout of the same was obtained running in 2 pages bearing his signatures at point A. Nothing adverse took place so as to affect the correctness of the information so fed in the computer. He also made endorsement on rukka which is Ex.PW5/B bearing his signatures at point A. PW5 stated that another print of FIR was also obtained which FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.6 of 13 7 was tagged in the FIR register as per rules. PW5 brought the original FIR register for the year 2018 maintained at the PS containing the original FIR no.258/18. After registration of FIR he handed over the original rukka with copy of FIR to SI Rambir for further investigation. He had also issued his certificate u/s 65B Evidence Act qua FIR which is Ex.PW5/C bearing his signatures at point A.
13. In his cross examination, PW5 stated that he had no personal knowledge of the case. The complainant did not come to him in the PS at the time of registration of FIR. He denied the suggestion that he had not received any rukka and the FIR was ante dated and ante time. No other material fact was deposed to by PW-5.
14. PW6 is Retd. SI Rambir Singh who deposed that on 16.09.2018 he was posted at PS Prasad Nagar as SI and was present in the PS. On that day, the complainant Rajiv Kumar brought the accused Vinay @ B.D to the PS. He recorded the statement of complainant regarding trespass of the accused into the godown of the complainant through window in the night and attempt to commit theft. He prepared the rukka Ex.PW6/A bearing his signatures at point A and handed over the same to the DO for registration of FIR. After some time, DO handed over the copy of FIR and original rukka to him for further investigation. Thereafter, he alongwith the complainant went to the spot and prepared site plan already Ex.PW2/B. Thereafter, the accused was arrested vide arrest memo already Ex.PW1/A and his personal search was conducted vide memo already Ex.PW1/B bearing his signatures at point B and recorded the disclosure statement of accused already Ex.PW1/C bearing his signatures at point B. He recorded the statement of witnesses and after completion of investigation he prepared the chargesheet and filed the same before the court. Accused was correctly identified by the witness.
15. In his cross examination by Ld. LAC for the accused, PW6 stated FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.7 of 13 8 that it is correct that the complainant did not call him regarding the offence. He did not remember the name of the persons who had come to the PS alongwith the accused. His duty hours were from 08:00am to 08:00pm. One constable had written the rukka as per the statement of the complainant. He stated that it is correct that nothing was recovered from the accused at the time of arrest. It is correct that at the time of arrest Ct. Kuldeep was present as a witness. He went to the crime site alongwith Ct. Kuldeep and complainant Rajiv Kumar at the crime site. There were 50 persons present. There were around 4-5 windows and all the windows were opened. He stated that he did not remember the number of the doors at the place of incident. He stated that it is correct that he did not collect any evidence from the site. At around 10:30am he returned to the PS by foot. He denied the suggestion that the complainant alongwith accused had not come to the PS and he did not record the statement of the complainant and did not visit the spot. PW6 denied the suggestion that the accused was lifted from his house and falsely implicated in the present case. No other material fact was deposed to by PW6.
16. After completion of examination of all the prosecution witnesses, prosecution evidence was closed on 01.10.2019. Thereafter, the matter was fixed for recording of statement of accused u/s 313 CrPC.
Statement of accused:-
17. On 15.10.2019, the statement of accused u/s 313 CrPC was recorded whereby all the incriminating evidence was put to the accused. In his statement recorded u/s 313 CrPC, the accused stated that it is a false case and he has been falsely implicated in the present case. All the witnesses are police witnesses and they are interested witnesses. The accused did not wish to lead any DE and hence the opportunity to lead DE was closed vide order dt. 15.10.2010.
FIR No. 258/18PS Prasad Nagar State Vs. Vinay @ B.D. Page No.8 of 13 9 Final Arguments:-
18. Final arguments were addressed by Ld. APP for the State as well as Ld. Counsel for accused on 21.10.2019. In the final arguments, Ld. APP for the State submitted that on the basis of the oral and documentary evidence, the prosecution has been able to prove its case against the accused beyond reasonable doubt and the accused be convicted of the offence u/s 457/380/511 IPC and be punished in accordance with law. On the other hand, Ld. LAC for the accused submitted that the offence is not prove against the accused. Accused has been falsely implicated in the present case and thus the accused be acquitted of the aforesaid offence.
Submissions heard. Record Perused.
Findings:-
19. It may be noted that the accused has been charged for the offence U/s 457/380/511 IPC in the present case. The said provisions may be reproduced as under:-
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.
380- 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 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
511- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment--- whoever attempts to commit an offence punishable by this code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or as the case may be one half of the longest term of FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.9 of 13 10 imprisonment provided for that offence], or with such fine as is provided for the offence of with both.
20. As stated above that in the present case, it is the allegation against the accused Vinay @ BD that on 16.09.2018 at about 05:00 am at 6319/6, Second floor, Padam Singh Road, Dev Nagar, Karol Bagh, Delhi within the jurisdiction of PS Prasad Nagar, the accused tried to trespass into the godown belonging to the complainant Rajiv Kumar by breaking open the window in a lurking manner in order to commit theft and the worker namely kishori Lal apprehended him in the said godown and in this manner the accused committed an offence punishable U/s 457/380/511 IPC.
21. As already said in order to prove the offence against the accused, the prosecution has got examined 6 witnesses. PW-1 is Ct. Kuldeep PS Prasad Nagar, who in his testimony stated that he was present at the PS when the complainant Rajiv Kumar had brought the accused , who was apprehended by him and he reported that the accused was trying to steal goods from the godown of the complainant. After having the complaint recorded by the IO, the accused was arrested vide arrest memo Ex.PW-1/A ,then the accused was personally searched vide search memo Ex.PW-1/B and the disclosure statement of the accused was also recorded which is Ex.PW-1/C. Accused was correctly identified by the witness in the Court. In his cross examination by Ld. LAC for the accused , PW-1 reiterated that the complainant had produced the accused at the PS and was accompanied by two other persons. PW-2 Rajiv Kumar (Complainant) stated in his examination that his two workers namely Alam and Kishori used to sleep at the godwon during the night time. On 16.09.2018 at about 05.00 am Kishori Lal had called him and informed him that one person had broken into the godown through the window at second floor and was trying to steal away the goods lying there. On information, he reached at his godown and saw the accused who was apprehended by his workers. He alongwith 2-3 local FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.10 of 13 11 persons took the accused to the PS and filed his complaint. The accused was correctly identified by PW-2 in the Court. In his cross examination by Ld. LAC for the accused PW-2 stated at about 03.00 am , the accused had tried to enter the godown and thereafter he had received the call from his employee. He told the name of the persons who had reached at the spot on his call i.e. Naveen, Kamal, Dinesh , Alam and Kishore. He stated that he had taken the accused to the PS in his personal vehicle. PW-3 Alam stated in his examination that on 16.09.2018, after completing there work, he and Kishori were sleeping in the godown at night. At about 03:00 am, when they were sleeping, the accused entered in their godown from window. He stated that the room was dark and accused foot got touched with the foot of kishori. After that Kishori had woken up and he also woke up and they caught hold the accused and made a call to their owner Rajiv Kumar (complainant). After sometime Rajiv Kumar alongwith Sharma ji. Naveen and Gatekeeper came to the godown and thereafter Rajiv Kumar lodged a complaint with the police officials and handed over the accused person to the police officials. PW-4 Kishori has also corroborated/supported the version of PW-3. Both PW-3 and PW-4 have withstood the cross examination by Ld. LAC for the accused with ease and gave appropriate answers. PW-5 is ASI Suresh Kumar, who was working as DO on 16.09.2018. In his examination, he stated that SI Rambir presented the rukka to him, on the basis of which he got registered FIR Ex. PW-5/A. He also made wndorsement on rukka which is Ex.PW-5/B and issued his certificate under section 65 B Evidence Act qua the FIR, which is Ex. PW-5/C. PW-6 is Retd. SI Rambir Singh is the IO of the present case who stated in his examination that on the day of incident i.e. 16.09.2018, the complainant Rajiv Kumar brought the accused Vinay @ BD to the PS. He recorded the statement of complainant regarding trespass into the godown of the complainant through window in the night and made an attempt to commit theft. Statement of the complainant was recorded in this regard which is Ex.PW-2/A. He prepared the rukka Ex.PW-6/A, and handed over the FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.11 of 13 12 same to DO for registration of FIR . Thereafter FIR was registered and he proceeded for further investigation. He alongwith the complainant Went to the spot and prepared site plan Ex.PW-2/B. thereafter accused was arrested vide arrest memo Ex.PW-1/A , his personal search was conducted vide memo Ex.PW-1/B and disclosure statement of accused was recorded which PW-1/C. He recorded the statement of witnesses and after completion of investigation, he prepared the chargesheet and filed the same before the Court. PW-6 correctly identified the witness in the Court. In his cross examination PW-6 has given proper answers to the question asked by Ld. LAC for the accused.
22. Thus, after appreciation of testimonies of all the prosecution witnesses , documents filed and material available on record, this court is of the view that the prosecution has been able to prove its case against the accused beyond reasonable doubt. The testimony of PW-2, 3 and 4 collectively prove that the accused Vinay @BD had trespassed in the godown of the complainant Rajiv Kumar at 6319/6, second floor, Padam Singh Road, Dev Nagar Karol Bagh, Delhi during night time about 03:00 am in a lurking manner by breaking open the window , who was apprehended at the spot by the workers of the complainant namely Alam and Kishori. Alam and Kishori then informed the complainant Rajiv Kumar about the incident , who accordingly reached at the spot alongwith other persons and thereafter the complainant was handed over to the police officials and got arrested for the commission of the offence U/s 457/380/511 IPC. The Circumstances and the time of the commission of the offence suggest that the accused had trespassed into godown of the complainant with the intention to commit theft , however, he was apprehended beforehand . The testimonies of all the prosecution witnesses is clear, unequivocal, truthful and inspires confidence of this Court. Nothing contradictory has come on record in the cross examination of the prosecution witnesses which may create a doubt about the commission of the offence by the accused person. The testimony of FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.12 of 13 13 prosecution witnesses is also duly corroborated by documentary evidence placed on record (as discussed above) and consequently the accused Vinay @ BD stands convicted of the offence U/s 457/380/511 IPC.
Judgment Pronounced in the open Court.
Put up for order on sentence on 27.11.2019.
Digitally signed by FAHADFAHAD UDDIN Date: UDDIN 2019.11.25 17:22:37 +0530 Announced in the open court (FAHAD UDDIN) today itself Metropolitan Magistrate-01 (Central), Tis Hazari Courts, Delhi/21.11.2019 FIR No. 258/18 PS Prasad Nagar State Vs. Vinay @ B.D. Page No.13 of 13