Delhi District Court
State vs Md Chand on 25 July, 2024
IN THE COURT OF MS. UPASANA SATIJA, ACJM, WEST,
TIS HAZARI COURT, DELHI
State v. Md. Chand
FIR No. 365/2021
u/s 380/457/511 IPC
PS: Patel Nagar
CNR No. DLWT02-016403-2021
Serial No. of the case 10936/2021
Date of commission of offence 05.08.2021
Date of institution of case 04.10.2021
Name of the complainant Arjun S/o Babu Lal
Name of Accused, parentage Md. Chand S/o Mohd. Alam
& Address Gir R/o B-83, Pandav Nagar,
Anand Parbat, Delhi.
Offence complained Under section 380/457/511
IPC
Plea of Accused Pleaded not guilty
Date on which judgment was 25.07.2024
reserved
Final Order Acquitted
Date of Judgment 25.07.2024
JUDGMENT
1. The present case arises out of FIR registered upon complaint of Arjun S/o Babu Lal (hereinafter referred to as 'Complainant'). Upon completion of the investigation, the chargesheet was filed u/s 380/457/511 IPC against Md. Chand S/o Mohd. Alam Gir (hereinafter referred to as 'accused').
_________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.1 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:30:40 +0530
2. The case of prosecution, in brief, can be stated as that on 05.8.2021, at about 04.00 AM at A-2150, Baljeet Nagar, Delhi, accused committed lurking house trespass by night by entering into the above said building used as a human dwelling, in the possession of complainant and attempted theft of iron rod, belonging to complainant.
3. The cognizance for the commission of offence u/s 380/457/511 IPC was taken and the copy of chargesheet was supplied to the accused.
4. The material on record prima facie disclosed the commission of offence u/s 380/457/511 IPC. The charge was accordingly framed against the accused to which he pleaded not guilty and claimed trial and hence, this Court conducted trial.
5. For proving its case, prosecution examined three witnesses.
Accused admitted registration of FIR and DD No. 10-A dated 05.08.2021. Accordingly, the examination of corresponding witnesses was dispensed with. The aforesaid documents were exhibited as Ex. A1 and A3 respectively.
5.1. HC Narender Kumar was examined as PW1. He deposed that in the intervening night of 4-5.08.2021, he along with SI Bajrang was on emergency duty. At about 4:00 a.m. on receipt of DD No. 10A regarding apprehension of one thief, IO SI Bajrang had joined him in the investigation of the present case and they went to the spot i.e. 2150, Baljeet Nagar, Jhuggi Patel Nagar, Delhi. The complainant namely Sh. Arjun met them at the _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.2 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:30:47 +0530 spot and narrated the entire incident to them and handed over the custody of one person to IO. On enquiry, the accused disclosed his name as Md. Chand. Statement of the complainant was recorded by the IO. On the basis of the same, IO prepared tehrir and handed over to him for registration of FIR. After registration of FIR, he returned to the spot along with copy of FIR & original tehrir and handed over the same to IO. IO had requested some passers-by to join the investigation but none agreed and left the spot without giving their names and addresses. Thereafter, IO prepared the site plant at the instance of the complainant. Accused was arrested by the IO vide arrest memo Ex.PW1/A and personal search of the accused was conducted by the IO vide personal search memo Ex.PW1/B. IO also recorded the disclosure statement of accused vide memo Ex.PW1/C. Thereafter, IO recorded the supplementary statement of the complainant and discharged him. On the directions of the IO, he got the accused medically examined at RML Hospital and then returned to PS. IO put the accused in the lock up. His statement was recorded by the IO and thereafter, he was discharged.
PW1 was cross-examined by Sh. K. K. Singh, Ld. LAC for accused. During his cross-examination, he stated that he did not remember the exact time when he went to the spot from police station, however, it was around 04:00 am. The distance between the spot and PS is about 200 meters. He reached at the spot at around 04:10 am. The spot is an under construction building and some jhuggis were also present there. At about 05:00 am, IO handed over the rukka to him for registration of FIR. He reached the police station in about 10 minutes. After the _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.3 of 12 Digitally signed by UPASANA UPASANA SATIJA Date: SATIJA 2024.07.25 16:30:52 +0530 registration of FIR, he returned back at the spot at about 06:00 am. The IO interrogated some public persons present at the spot and asked them to join the investigation, however, they refused to join the same. The IO did not interrogate any neighbour. The IO recorded his statement on the spot. At about 08:00 am, accused was taken to the hospital by him. He denied that all the documents were prepared in the PS or he never visited the spot alongwith the IO for investigation and the site plan was prepared in the PS itself.
5.2. Complainant/Sh. Arjun was examined as PW-
2. He deposed that on 05.08.2021, at about 04:00 a.m. he was sleeping in his jhuggi situated at Baljeet Nagar, Patel Nagar, Delhi. When he woke up, he saw that accused was trying to steal his iron TMT bar kept in his jhuggi. He apprehended him. He called the PCR at 100 number. After some time, police officials came at the spot & the custody of the accused was given to them.
His statement was recorded by the police; same was exhibited as Ex.PW2/A. He had shown the place of incident to the police officials and identified his signatures at point A on site plan Ex.PW2/B. The accused was also arrested & his personal search was conducted.
PW2 was cross-examined by Sh. K. K. Singh, Id. LAC for accused. During his cross-examination, he stated that on 05.08.2021, one person of his village was also present with him in his jhuggi but he did not know the name of that person. He voluntarily said that the said person was from his village. On that day, in his jhuggi, the building material was lying as construction was going on the said property. He voluntarily said that he was _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.4 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:30:57 +0530 working for fixation of tiles on the said property. He could not tell the measurement of iron TMT bar which accused was trying to steal on the day of incident. The gate of the jhuggi was made up of metal plate (chadra). He called the Supervisor who later on called the PCR. He called the Supervisor at about 04:00 a.m. Police came at the spot at about 05:00 a.m. Police had interrogated & recorded the statement of the person who was present with him on the day of incident. His statement Ex.PW2/A was taken at PS. He couldn't tell the place where the site plan was prepared. He did not remember where he made the signatures on the documents prepared by the police due to considerable lapse of time. Police had not interrogated any local resident. He voluntarily said that the nearby buildings were vacant. Police had not interrogated any passerby in his presence. The police remained at the spot for about 10-15 minutes. Police had not visited the spot thereafter. He denied that he made a false complaint against the accused at the instance of the IO.
5.3. SI Bajrang was examined as PW-3. He deposed that he was on night emergency duty from 08:00 PM (04.08.2021) to 08:00 AM (05.08.2021) at PS Patel Nagar. He was posted as SI at PS Patel Nagar. Ct. Narender was also present with him in the night duty. At around 05:45 AM on 05.08.2021, he received DD No. 10A regarding the incident at the back of the PS in Baljeet Nagar. Thereafter, he alongwith Ct.
Narender reached the spot and the complainant namely Arjun met them. The complainant was already holding a boy/accused namely Mohd. Chand and the complainant informed them that the accused was trying to enter his house to steal some articles. _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.5 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:31:03 +0530 Thereafter, he recorded the statement/tehrir of complainant Arjun regarding the incident. He endorsed tehrir and prepared rukka and sent Ct. Narender to PS alongwith rukka for registration of FIR. After registration of FIR, Ct. Narender returned to the spot alongwith copy of FIR, original rukka and certificate u/s 65-B Indian Evidence Act and handed over the same to him. Thereafter, he asked 4-5 public persons who were present at the spot to join the investigation of the present case, however, they refused to join the investigation without disclosing their name and addresses. He interrogated the accused and also prepared disclosure statement of the accused. Thereafter, he arrested the accused and also personally searched the accused. Thereafter, he prepared the site plan of the spot at the instance of the complainant and also got conducted the medical examination of the accused and sent him to JC. He came back to the PS and recorded the statement of Ct. Narender and Complainant Arjun u/s 161 Cr.P.C. After completing the further proceedings, he filed the chargesheet on 04.10.2021. He identified the accused in the court.
PW3 was cross-examined by Sh. K. K. Singh, Ld. LAC for the accused. During his cross-examination he stated that he reached the spot at around 06:15 AM. No other person except the accused and complainant met at the spot. He did not make any videography or photography at the spot. He did not seize the TMT iron bar which the accused was trying to steal. He cannot tell the exact measurement of the iron bar. He remained at the spot for about 4-5 hours and during that time no owner or supervisor of the place came at the spot. He had never inquired _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.6 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:31:09 +0530 from any neighbours as none of the neighbours seen the incident. He denied that he had never visited the spot nor did any investigation in the present case and all the documents were prepared at the PS. He further denied that the accused is falsely implicated at the instance of the complainant.
6. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him who denied the same and stated to be innocent. He further stated that he was only sitting outside the premises of the complainant. He told him to not to sit there and after some minor altercation between them, he falsely implicated him in the present case.
7. Final arguments were heard.
8. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted. On the other hand, Ld. Counsel for the accused argued that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and hence, he be acquitted.
Applicable Law, Appraisal of Evidence and Finding
9. Section 380 IPC provides penalty for Theft in dwelling house, etc. It provides that:-
Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.7 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:31:14 +0530 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.
10. Accordingly, in order to establish the liability of the accused under Section 380/511 IPC, the prosecution is required to prove that the accused attempted to commit theft and attempt to commit theft was made in dwelling house.
11. Section 378 IPC defines the term theft. It provides that:-
Whoever, intending to take dishonestly any moveable 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.
12. Further, the accused has been charged for commission of offence under Section 457 IPC which provides penalty for Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment. It provides that:-
Whoever commits lurking house-trespass by night or housebreaking 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.
_________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.8 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
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13. Accordingly, to establish the liability of accused under Section 457 IPC, the prosecution is required to establish that accused committed lurking house trespass or house breaking during night and same was done with intention of committing theft.
14. It is the case of the prosecution that on 05.08.2021, accused committed lurking house trespass by night by entering into the premises in occupation of the complainant in order to commit theft.
15. Section 443 IPC defines lurking house trespass. It provides that:-
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-trspass".
Section 444 IPC provides that Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit "lurking house- trespass by night"
16. Section 442 IPC defines house- trespass. It provides that:-
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.9 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:31:25 +0530 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.
Section 441 IPC defines criminal trespass. It provides that:-
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".
17. In the present case, the prosecution examined PW1, the complainant in support of its case who deposed to the effect that on 05.08.2021, at about 04:00 a.m. he was sleeping in his jhuggi situated at Baljeet Nagar, Patel Nagar, Delhi and when he woke up, he saw that accused was trying to steal his iron TMT bar kept in his jhuggi.
18. Hence, the only material produced by the prosecution in support of the fact that accused entered jhuggi under occupation of the complainant and attempted to commit theft of iron rod in possession of the complainant, is the testimony of the complainant. The alleged iron rod was not _________________________________________________________________________ FIR No.365/2021 State v. Md. Chand PS: Patel Nagar Page No.10 of 12 Digitally signed by UPASANA UPASANA SATIJA SATIJA Date:
2024.07.25 16:31:30 +0530 seized by the IO. The IO did not take any photographs of the alleged place of incident. The Bill of iron rod has not been filed on record. No document or any other material has been placed on record to show that complainant was in possession of the iron rod. Hence, prosecution has failed to establish that complainant was actually in possession of any iron rod. Similarly no document or other material is filed to show that the complainant was in possession of the alleged premises. As regards presence of the accused inside the premises is concerned, complainant deposed that he had seen him inside whereas PW3/IO deposed that complainant informed that accused was trying to enter inside the premises. Further, there are contradictions in testimony of PW1, PW2 and PW3 regarding receipt of information regarding occurrence of alleged offence and arrival of police officials at the spot. No public persons or neighbours were examined. Complainant deposed to the effect that one person from his village was present at the time of alleged incident and said persin was interrogated by the police and his statement was recorded however, the said fact is conspicuously missing from testimony of PW1 and PW3.
19. Before a person can be held liable for commission of any offence the prosecution has to establish his guilt beyond reasonable doubts. In view of the contradictory testimonies of the witnesses and the fact that there is nothing on record to show that complainant was in possession of alleged premises or the iron rod, it is concluded that prosecution has failed to establish the guilt of the accused beyond reasonable doubt.
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2024.07.25 16:31:36 +0530
20. Accordingly, accused Mohd. Chand is acquitted of offence under Section 457/380/511 IPC.
21. Bail bond already furnished by Mohd. Chand shall remain in force for a period of six months from today in terms of Section 437-A Cr.P.C.
22. File be consigned to record room after due compliance.
Announced in open court Digitally
on this 25th day of July, 2024 signed by
UPASANA
UPASANA SATIJA
(This judgment contains 12 pages SATIJA Date:
2024.07.25
and each page is signed by me)
16:31:44
+0530
(UPASANA SATIJA)
ACJM (West)/THC/Delhi
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