Delhi District Court
State vs . Sher Ali S/O. Mohd. Abdul Salam on 26 April, 2018
IN THE COURT OF SH. RAGHUBIR SINGH
ADDL. SESSIONS JUDGE-02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
SESSIONS CASE No. 45/16
FIR No. 968/15
PS. Seelampur
U/s. 459/380/511 IPC
Instituted on 19.03.2016
Argued on 26.04.2018
Decided on 26.04.2018
Final Order convicted
State Vs. Sher Ali S/o. Mohd. Abdul Salam
R/o. Hazi Ji Ka Makan, Gali No.2, Shastri
Park, Delhi.
JUDGMENT
1. The facts of the case are to the effect that on 26.12.15 a boy namely Govinda aged 19 years had made a complaint (Ex.PW1/A) to the police. In the said complaint, he had alleged that when at about 3:15 PM he returned back home from nearby park, he noticed that a person had entered into his house by breaking open the lock thereof and was making search in the house and goods were lying scattered. On seeing the said person, the complainant started shouting 'Chor-2' and on this, the intruder took out an iron rod and started hitting it on the head of the FIR No. 968/15 State Vs. Sher Ali page 1 of 7 complainant. The complainant started crying as blood had oozed out from his head. The persons from the vicinity gathered there and the intruder was caught hold of who revealed his name as Sher Ali. Some one dialed at 100 number, the police came there and apprehended the accused. On the said complaint, FIR dated 26.12.15 under section 455/380/511 IPC was registered.
2. After completion of the investigation, the police filed final report U/s.173 Cr.P.C for the offence punishable under section 459/380/511 IPC as the doctor had opined the injuries on the person of the injured/complainant as 'grievous'.
3. Vide order dated 04.07.2016, the accused was charged for the offences punishable under section 459 IPC and Section 380/511 IPC to which he pleaded not guilty and claimed trial.
4. Prosecution got examined nine witnesses including the injured/complainant as PW1 and IO /SI Devender Prasad as PW8. PE stood closed vide order dated 16.02.2018.
5. SA under section 313 Cr. P.C was recorded as on 13.04.18 whereby all the incriminating evidence was put to the accused and the accused took the pretext of having been falsely implicated as the complainant FIR No. 968/15 State Vs. Sher Ali page 2 of 7 had borrowed some money from him and when he demanded it back, he was falsely implicated. He opted not to lead any evidence in defence.
6. File perused. Ld. Counsels heard.
7. The gist of the prosecution case is that on the fateful day when no one was there in the house of the complainant, the accused broke open the lock of the house and entered therein with the intention of committing theft and while he was still inside the house the complainant reached there to whom the accused caused grievous injuries with the help of an iron rod, however, the accused was apprehended there itself.
8. The crux of the defence is that the complainant had borrowed some money from the accused and when the accused demanded it back he was falsely implicated in the present case.
9. The material on record requires thorough appreciation in the light of the afore-summarized rival contentions. As a matter of fact, the injured/complainant himself when examined as PW1 has extensively deposed almost verbatim the prosecution version. His deposition touches upon all the minute details in a very coherent and consistent manner. As per his deposition on 26.12.15 when at about 3:15 PM or so, FIR No. 968/15 State Vs. Sher Ali page 3 of 7 when he returned back home from a nearby park, he found that the lock of his house was broken and someone was there inside the house. The household articles were lying scattered. On being inquired as to what he was doing there, the intruder took out an iron rod and started hitting on the head of the complainant. As per his MLC Ex.PW6/A, the injuries so caused to the complainant have been opined to be 'grievous' in nature. The accused was apprehended then and there. The complainant also duly identified the accused in the court during his testimony as PW1. During the entire cross examination of this witness conducted on 18.09.2017, strangely it was not at all directly or even indirectly refuted that the accused had intruded into the house of the complainant or had been apprehended at the very spot. The only defence so pleaded is to the effect that he was falsely implicated as the complainant had borrowed some money from him and he was demanding it back. The defence so pleaded is vague on the very face of it as it was not even suggested as to when the complainant had borrowed from the complainant, as to how much the amount allegedly so lent to the complainant etc etc.
10. Further, the testimony of IO/SI Devender Kumar examined as PW8 also lends support to the prosecution case without any latches. He has duly proved having received DD No.24A as on 26.12.15 containing the information of the incident in question, his prompt visit to the place FIR No. 968/15 State Vs. Sher Ali page 4 of 7 of incident and the deposition to the effect that on reaching there at the spot i.e H. No. A-97/1, Gali No.2, Shastri Park, Delhi, the PCR officials were found present with apprehended accused Sher Ali. This official witness also deposed that the broken lock and the iron rod were also recovered therefrom. He also deposed regarding his observation that the household articles were lying scattered in the room/house of the complainant. The rest part of his deposition is formal in nature reflecting on the various formalities of preparing site plan etc. In his entire cross examination, no substantive suggestion could be brought on record so as to give rise to any doubts regarding the veracity of the prosecution version. It was again reiterated in defence that it was allegedly a monetary dispute between the complainant and the accused for which reason, he was falsely implicated. However, this sort of defence is entirely baseless moreso in the absence of any details regarding alleged lending date or even the amount so lent. Rest police officials cited and examined as prosecution witnesses have also performed their part well and nothing contrary to the believability of the prosecution version could be brought on record in defence. It is also worth mentioning that the prosecution has duly proved the factum of causing injury with the help of an iron rod on the person of the complainant by the accused which injuries were opined to be grievous in nature. Moreover, it also stands duly proved that the accused had committed the house trespass ensuring that no one was there in the house within the meaning of FIR No. 968/15 State Vs. Sher Ali page 5 of 7 lurking house trespass under section 443 IPC.
11. As far as the ingredients under Section 459 IPC are concerned, in the very wording thereof the word 'whilst' requires to be given a broader interpretation in the light of case law titled as Bhanwarlal Vs. Parbati 1968 Crl.L.J, 130(All). In the said judgment, the Hon'ble Allahabad High Court observed that the word 'whilst' cannot be confined to the narrow meaning of causing grievous hurt while attempting to trespass into the house. It was further observed that the house breaking was a criminal trespass and that the offence continues so long the person committing trespass remains upon the property trespassed. Thus, undoubtedly, even if the injuries caused to the complainant were so caused after entering into the house, the same would amount to the offence as under Section 459 IPC as the nature of the injury has clearly been opined grievous. The fact that the house was being searched by the accused and things were lying scattered there are sufficient to prove the intention of the accused having come there to commit theft. The accused could not succeed in committing the theft as in the meantime the complainant had arrived there and thus, the charge under section 380 r/w 511 IPC also stands proved in the absence of any cogent or probable defence.
12. The findings given hereinabove are clear enough to FIR No. 968/15 State Vs. Sher Ali page 6 of 7 conclude that the prosecution has proved its case beyond reasonable doubt. He is hereby found and held guilty for the offence charged with and is convicted accordingly.
Digitally signed by RAGHUBIR
RAGHUBIR SINGH
SINGH Date:
2018.05.02
12:54:19 +0530
Announced in open court
as on 26.04.2018 (RAGHUBIR SINGH )
Addl. Sessions Judge-02/North East
Karkardooma Courts, Delhi
FIR No. 968/15 State Vs. Sher Ali page 7 of 7