Delhi District Court
State vs . Sheikh Azad on 22 July, 2013
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
STATE Vs. Sheikh Azad
FIR No. : 73/2010
U/SEC : 454/380/511 IPC
PS Hari Nagar Delhi
Unique Case ID Number : 02401R0205572010
JUDGMENT
Serial No. of the case 1878/II/10
Date of commission of offence 17.03.2010
Date of institution of the case 14.05.2010
Name of the complainant Ranjeet Singh
Name of accused, parentage & Sheikh Azad s/o Shekh Azabul r/o
address Gali No. 1 in front of Shiv Mandir,
Bapa Nagar, Karol Bagh, New Delhi
Offence proved Sections 454/380/511 IPC
Plea of the accused Pleaded not guilty
Date of arguments 10.07.2013
Final order Convicted U/sec 448 IPC
Date of Judgment 22.07.2013
1. Vide this judgment I shall dispose off the present case filed by ASI Harpal Singh (hereinafter referred as IO) on the complaint of Ranjeet Singh (hereinafter referred as complainant) against Sheikh Azad (hereinafter referred as accused) for committing offence under sections 454/380/511 of Indian Penal Code (hereinafter referred as FIR No. 73/2010 PS Hari Nagar Page No. 1 of 12 IPC).
BRIEF FACTS:
2. Briefly stated facts of the case are that on 17.03.2010 DD entry No. 23 was registered to the effect that one thief has been apprehended near C58, Primary School, Clock Tower, Hari Nagar. The said DD entry was handed over to ASI Harpal Singh. IO reached the spot where he met complainant. Complainant produced one person namely Sheikh Azad. One pithoo bag and a screw driver were also produced by the complainant which were recovered from the possession of accused. Statement of the complainant was recorded and rukka was prepared. FIR was registered through Ct. Shri Bhagwan. Accused was arrested and his finger prints were sent to Finger Print Bureau and it was revealed that the same finger prints were available in the record of person namely Muzaffar Sheikh Azad who is involved in other cases of theft.
3. In this back drop, charge sheet has been filed against accused for committing offences under section 454/380/511/34 IPC on 14.05.2010.
Copies under section 207 CrPC supplied to accused on 12.07.2010. Charge for the offences under section 454/380/511 IPC was framed against accused on 09.11.2010 to which he pleaded not guilty and claimed trial. Thereafter, matter was put up for prosecution evidence. EVIDENCE RECORDED DURING TRIAL:
FIR No. 73/2010 PS Hari Nagar Page No. 2 of 12
4. Prosecution has examined seven witnesses to prove its case against the accused.
5. PW1 Ranjeet Singh had parroted the contents of the complaint in his examination in chief and exhibited the complaint as Ex. PW1/A. He exhibited the seizure memo of the lock as Ex. PW1/B, seizure memo of pitho bag and screw driver as Ex. PW1/C, arrest memo of accused as Ex. PW1/D and personal search memo of accused as Ex. PW1/E. He correctly identified the accused and case property and exhibited the case property as Ex. P1 collectively.
6. PW2 Smt. Gurmeet Kaur is the lady in whose house accused tried to trespass. She also deposed on the lines of complaint and fully supported the prosecution case. She correctly identified the accused and case property.
7. PW3 Ct. Shri Bhagwan accompanied the IO after receiving of DD No. 23 PP Hari Nagar. He exhibited the disclosure statement of accused as Ex. PW3/A.
8. PW4 HC Rohtash exhibited the copy of FIR as Ex. PW4/A and endorsement on rukka as Ex. PW4/B.
9. PW5 HC Braham Singh exhibited the DD entry No. 23 as Ex.
PW5/A.
10.PW6 ASI Madan Gautam, Finger Print Expert, exhibited search slip FIR No. 73/2010 PS Hari Nagar Page No. 3 of 12 of the accused as Ex. PW6/A and search slip of Muzafar in case FIR No. 97/08 PS Rajender Nagar as Ex. PW6/B.
11. PW7 ASI Harpal Singh deposed on the lines of investigation being carried out by him. He exhibited the rukka as Ex. PW7/A and site plan as Ex. PW7/B.
12.Thereafter, prosecution evidence was closed on 29.06.2013. Statement of accused under section 313 CrPC was recorded on 31.08.2012 in which all the incriminating evidence was put to him to which he denied in toto and submits that he was lifted from Hari Nagar Clock Tower Bus stand when he was going to meet his friend and the case property was planted upon him. He opted not to lead any defence evidence.
13.I have heard the final argument put forth by ld. APP for the State and Ld. Legal Aid Counsel Sh. A. K. Jha.
BRIEF REASONS FOR THE DECISION:
14. It is alleged against the accused that he entered into the house of PW2 Gurmeet Kaur and tried to break the lock of guest house situated at ground floor of the said property. He was seen by PW2 and later on apprehended by complainant PW1 when he tried to flee from the spot. Accused has been charged under section 454 IPC and 380/511 IPC. First of all, I would like to deal charge under section 380/511 IPC. FIR No. 73/2010 PS Hari Nagar Page No. 4 of 12 Definition of 'Theft' has been given in section 378 IPC which is reproduced here as under:
Section 378 IPC. Theft. "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."
15.Offence of theft has been made punishable under section 380 IPC if theft is committed in a dwelling house etc. Accused has been charged for attempting to commit an offence under section 380 IPC. To punish a person under section 380/511 IPC, it has to be proved that there was a complete attempt on the part of the accused and the offence could not be completed due to some other reasons which were beyond control of the accused. To complete an attempt, the offender should have done some act towards commission of the main offence. An attempt to commit an offence is set to begin when the preparations are complete and the accused commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. It has been alleged against the accused that he entered into the house of the victim with an intention to commit theft but he was seen by the victim and he could not commit theft. For the offence of theft and towards an attempt of theft, intention of the accused to commit theft is an important ingredient. Prosecution has to FIR No. 73/2010 PS Hari Nagar Page No. 5 of 12 prove that the intention of the accused was only to commit theft and none else. Intention cannot be presumed by the court and same has to be proved by the prosecution by way of ocular evidence or by conduct of the accused during the commission of offence. In the present case the only fact proved against the accused is that he entered into the house of the victim but what was his intention, that is not proved. A person may enter into somebody's house for so many reasons and commission of theft is not only the sole reason for doing so. It is admitted case of prosecution that accused was seen by the victim when he was trying to break the lock of the guest house. Meaning thereby, at the most we can say that he was trying to break the lock but we cannot presume that his intention was to commit theft. When the essential ingredient of the main offence are not complete in a set of facts then attempt of that offence cannot be made punishable as same is defective and falls short of an attempt which is made punishable under section 511 IPC. Therefore, I am of the considered view that intention to commit theft on the part of the accused is not proved by the prosecution and therefore, prosecution has failed to prove the allegation under section 380/511 IPC against the accused. Allegation under section 454 IPC.
16.Accused has also been charged under section 454 IPC as he entered into the house of the victim. Accused has entered by committing FIR No. 73/2010 PS Hari Nagar Page No. 6 of 12 house breaking and the definition of 'House Breaking' is provided in IPC under section 445 which is reproduced here as under:
Section 445 IPC. House Breaking. "A person is said to commit "housebreaking" who commits housetrespass 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 housetrespass, in order to the committing of the house trespass.
Second. If he enters or quits through any passage not intended by any person, other than himself or any 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 housetrespass has opened, in order to the committing of the housetrespass 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 quitting of the house after a housetrespass. 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 FIR No. 73/2010 PS Hari Nagar Page No. 7 of 12 departure, an to have been unfastened by himself or by an abettor of the house trespass.
17. It is alleged against the accused that he entered into the main gate of the house of the victim and he tried to break the lock of the guest house. Applying the present set of facts to the definition given under section 445 IPC, I am unable to find any of the 'six ways' applicable in this case. The mere presence of the accused inside the house of another person does not constitute house breaking. In the absence of evidence as to whether the accused had effected his entry into the house in any of the six ways enumerated in the section, the offence of house breaking is not established against him. Accused in the present case entered into the house of the victim through main gate which was meant for entering the house. Therefore, he did not made that passage himself. It is also not the case that passage was not intended to be used for human entrance. It is further not the case of the prosecution that he has obtained access to the house by scaling or climbing over any wall or window. The case would have been covered under fourthly if accused had succeeded to break open the lock of the guest room. However, seizure memo of the lock reveals that it has been mentioned that the broken lock has been seized but PW1 and PW2, who are the material witnesses in this case, have not stated that lock was broken by the accused. PW2 simply stated that when she saw the accused, he FIR No. 73/2010 PS Hari Nagar Page No. 8 of 12 was trying to break the lock. Therefore, it cannot be presumed that lock was being broken by the accused. Therefore, keeping in view the totality of the circumstances, the offence committed by the accused falls short of offence of house breaking. As far as offence of lurking house trespass is concerned, it is also not the case of the prosecution that any effort was made by the accused to conceal his identity during the incident. To qualify an act into the category of lurking house trespass, the house trespass must be coupled with an effort to conceal identity and if that effort is not present, there cannot be any offence of lurking house trespass. Therefore, the act of accused also falls short of the offence of lurking house trespass. Therefore, I am of the considered view that offence under section 454 IPC is not made out against the accused.
18.Ld. Defence counsel has argued that there are some contradictions between the statement of PW1 and PW2 qua informing the police on the date of incident. PW1 has stated in his cross examination that police was not called by him whereas PW2 stated that police was called by some neighbour. Therefore, it is not clear who has called the police which creates a doubt in the prosecution story and indicates towards false implication of the accused. It is further pointed out by ld. LAC that PW1 stated that the complaint was given by him and PW2 stated that complaint was given by her.
FIR No. 73/2010 PS Hari Nagar Page No. 9 of 12
The contradictions pointed out by Ld. LAC are of minor nature. Minor discrepancies are bound to occur in the deposition of prosecution witnesses because no person is expected to have a mirror image like memory. Moreover, the fact in issue of this case is that whether accused had entered into the house of the victim or not and witnesses have supported the prosecution case in this regard or not. Perusal of the record reflects that PW1 and PW2 have fully supported the prosecution case towards the material particulars and therefore, the contradictions qua calling of police and filing of complaint, are of minor nature which does not go roots of the case.
19.It is further argued by the defence that PW3 Ct. Shri Bhagwan has stated that they reached at the spot around 02:00 PM whereas initial DD entry was lodged at 02:20 PM. How come the police reached the spot prior to the registration of the DD entry. The deposition of PW3 smacks of false implication of the accused.
The contradiction raised by the defence is again of minor nature. The only question is that when material witnesses have supported the prosecution case in material aspects then the case of the prosecution cannot be thrown out of the window merely because one formal witness has stated something irrelevant which is against the admitted documentary evidence. The lacuna in the deposition of PW3 is of no avail to the defence and hence, argument stands rejected. FIR No. 73/2010 PS Hari Nagar Page No. 10 of 12
20.Now the question remained unanswered is what offence has been committed by the accused during the incident because it is proved by the prosecution that accused entered into the house of victim and was seen by the victim. She shouted chor chor and he was apprehended by the complainant at the spot. Ld. LAC argued that accused has been falsely implicated in this case and he was picked from Hari Nagar Ghanta Ghar Bus Stand and case property has been planted upon him by the IO.
The argument put forth by ld. LAC is without any substance as accused has failed to disclose any good reason for his false implication. I fail to understand why would PW1 and PW2 would depose against the accused, if they are not known to each other prior to the incident. It is also not the case of the defence that accused is having enmical terms with PW1 and PW2. Both witnesses have deposed without ambiguity that it was accused only who entered into the house of PW2 and he was apprehended at the spot. Defence has failed to cast any doubt over the deposition of PW1 and PW2. Merely stating that accused has been falsely implicated without any previous history of relationship between the parties, is of no consequence. I am of the considered view that accused had entered into the house of the victim and was apprehended at the spot. In my opinion, definition of 'house trespass' given under section 442 IPC is attracted in the present FIR No. 73/2010 PS Hari Nagar Page No. 11 of 12 set of facts. Offence of house trespass has been made punishable under section 448 IPC, therefore, after going through the entire judicial record and keeping in view the legal proposition, I am of the view that prosecution has successfully proved the allegation under section 448 IPC against the accused without any reasonable doubt. As far as non framing of charge under section 448 IPC is concerned, no prejudice has been caused to the accused, as he has been charged under section 454 IPC which is a major offence and he was having full knowledge of the case sought to be proved by the prosecution. So, nonframing of charge does not affect the merits of the case. Hence, keeping in view the above discussion and material available on record, I hereby convict the accused for committing under section 448 IPC.
21. Now to come up for arguments on sentence on 24.07.2013.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA
ON 22nd July, 2013 MM02/WEST DELHI
FIR No. 73/2010 PS Hari Nagar Page No. 12 of 12