Delhi District Court
Lokesh Kumar vs The State (Govt. Of Nct Of Delhi) on 17 September, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND-01-006554-2016
Criminal Appeal Number : 12/1/16
New Criminal Appeal Number : 8671/2016
FIR No. : 291/2015
PS: : Vasant Vihar
Lokesh Kumar
S/o Sh. Prem Singh
R/o House No.281,
Munirka Village,
P.O-JNU, New Delhi.
(At present in Judicial Custody).
.....Appellant
versus
The State (Govt. of NCT of Delhi) .....Respondent
Appeal received by Court : 28.05.2016
Arguments concluded : 07.09.2016
Date of judgment : 17.09.2016
-:JUDGMENT:-
1 By way of present appeal, the appellant herein has challenged the CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 1 of 28 judgment of conviction dated 26.04.2016 passed by Sh. Harvinder Singh, Ld. MM-06, PHC, New Delhi whereby the appellant/accused was held guilty and convicted for the offences punishable under sections 380 and 454 (II) IPC and the consequent order on sentence dated 05.05.2016 whereby the appellant was awarded a sentence to undergo RI for 2 ½ years for commission of offence punishable under section 380 IPC with fine of Rs.5,000/- and in default of payment of fine to undergo further SI for 03 months and to RI for 03 years for the commission of offence punishable u/s 454 (II) IPC with fine of Rs 5000/- and in default of payment of fine to undergo further SI for 03 months. It was mentioned in the order on sentence dated 05.05.2016 that both the sentences shall run consequently (consecutively) considering the fact that convict had already become hardcore facing the trial of many similar offences registered at different time periods ranging from 2012-2015. It was further mentioned in the order that no order as to compensation was being made as the convict was already in JC in some other matters also. Benefit of Section 428 CrPC and Section 68 and 69 IPC was given to the convict. Perusal of Appellate Court record would show that the above said fine amount of Rs 10,000/- was deposited by the convict on 05.05.2016 and the photocopy of the fine payment receipt is on record.
2 Briefly stated, the facts of the case are that one complaint dated 08.03.2015 was received by the SHO concerned from the complainant Mr Kaushik Ganguli/PW1 to the effect that there was a robbery in his house around 6.30pm on Sunday/08.03.2015. In the said complaint, he had given a list of the things which were found lost from his house CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 2 of 28 as one watch-Fastrack, photocopies of his certificates and proofs, candle stand, TV remote, photocopies of driving licence, passport and PAN Card and old Nokia phone of black colour. It was further mentioned in the said complaint Ex PW1/A that the complainant/informant/PW-1 was staying at 61A, 1st Floor, Ber Sarai, New Delhi and on 08.03.2015 at about 6:30pm while he was opening the door of his house, he noticed that somebody was running away from his balcony side. He raised alarm, passersby caught that person and handed that person to him. It was further mentioned that some people had gathered there. It was mentioned in Ex. PW 1/A that the said person was carrying a bag in which the above mentioned articles were recovered at the spot itself with a cutter/pliers. On questioning the said person disclosed his name as Lokesh (accused/convict/appellant), he seemed to be a drug addict and he was trying to harm himself. In the meanwhile police patrolling staff consisting of PW-3 Ct Mukesh Kumar reached there who took the complainant and the accused to the police station.
3 The investigation of the matter was assigned to IO/ASI Deen Dyal. The IO searched the said black bag upon which one wrist watch made Fastrack, one candle stand, one mobile phone Nokia, one TV remote TATA Sky, photocopies of Driving Licence, Passport and PAN Card and one blue colour pliers were recovered. The same were seized vide Seizure Memo Ex. PW 1/C. The IO took a written complaint from the complainant upon which the IO prepared a Tehrir. The same was received by PW-2 HC Sujit Singh, Duty Officer at PS Vasant Vihar, at 8:00pm on the basis of which the case FIR Ex. PW 2/A, u/s CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 3 of 28 454/380/411 IPC was registered. PW-2 made endorsement Ex. PW 2/B on the Rukka. After registration of the FIR, PW-2 handed over the computerized copy and original Rukka to PW-4/IO.
4 During investigation, PW-4, PW-1/complainant and PW-3 went to the spot and thereafter Site Plan Ex. PW 1/B was prepared at the instance of the complainant.
5 The accused/appellant was arrested vide Arrest Memo Ex. PW 1/E and his personal search was conducted vide Personal Search Memo Ex. PW 1/F. After conclusion of the investigation, Chargesheet was filed against the accused/appellant herein u/s 454/380/411 IPC, he was being produced from judicial custody and contested the case against him on merits. Charge u/s 454/380/411 IPC was framed against the appellant/accused on 19.05.2015 by the Learned Trial Court to which he pleaded not guilty and claimed trial.
6 The prosecution in order to prove its case against the appellant/convict has examined total four witnesses.
7 PW-1 Sh. Kaushik Ganguli is the most material witness for the prosecution being the complainant/informant of the case. His complaint dated 08.03.2015 regarding robbery to the SHO, PS Vasant Vihar, New Delhi has been proved as Ex. PW 1/A. The Site Plan which was prepared at the instance of PW-1 has been proved as Ex. PW 1/B. The Seizure Memo of a black colour bag and stolen articles i.e. one wrist watch made Fastrack, one candle stand, one mobile phone Nokia, one CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 4 of 28 TV remote TATA Sky, photocopies of Driving Licence, Passport and PAN Card and one blue colour pliers, which were recovered from the accused has been proved as Ex. PW 1/C, bearing the signatures of PW-1 at point A. The pointing out memo of the place of incident at the instance of the complainant/PW-1 has been proved as Ex. PW 1/D. The Arrest Memo and Personal Search Memo of accused have been proved as Ex. PW1/E & Ex. PW 1/F respectively, both bearing the signatures of PW-1 at point A. The abovesaid stolen articles of PW-1 have been proved as Ex. P1 (colly) and the abovesaid pliers has been proved as Ex. P2. The testimony of PW-1 shall be discussed in detail during the course of the judgment.
8 PW-2 HC Sujit Singh was posted as Duty Officer at PS Vasant Vihar. On 08.03.2015 at about 8:00pm he received one Rukka from PW-4/IO ASI Deen Dyal, on the basis of which the case FIR Ex. PW 2/A was registered. The endorsement of PW-2 on the Rukka has been proved as Ex. PW 2/B. After registration of the FIR, PW-2 handed over the computerized copy and original Rukka to PW-4.
9 PW-3 Ct. Mukesh Kumar has deposed that on 08.03.2015 he was on patrolling duty on the bike RP-27 in the area of Ber Sarai and at about 6:30pm at Ber Sarai village some crowd had gathered who were holding the accused Lokesh Kumar who was carrying a black bag with him. He deposed that one of the persons from the crowd i.e. PW- 1/complainant told him that the accused had stolen some articles from his room and was escaping from the scene. Thereafter, PW-3 brought the accused and PW-1 to the police station where he informed about CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 5 of 28 the said incident to SHO, who assigned the case to IO/PW-4. The IO searched the black bag which was handed over by the accused to the IO and upon search abovesaid articles were recovered. The Seizure Memo in that regard has been proved as Ex. PW 1/C, bearing the signatures of PW-3 at point B. The pointing out memo of the place of incident Ex. PW 1/D bears the signatures of PW-3 at point B. The Arrest Memo Ex. PW 1/E bears signatures of PW-3 at point B. He also correctly identified the case property Ex. P1 (colly) and Ex. P2. In cross-examination by Ld. defence counsel, PW-3 deposed that there were about 8-10 persons present there, the accused was caught hold of by the complainant, the accused was appearing to be in a drunken condition, when he reached there the accused was carrying a bag, he did not check the bag at the spot and he took the accused alongwith the bag to the police station. PW-3 did not make any enquiry from the aforesaid 8-10 persons present amongst the crowd. He further deposed that he alongwith complainant and accused went to the PS and the accused was arrested at the spot by the IO after they came from the police station. The medical examination of the accused was also got conducted. He denied the suggestion of the Ld. defence counsel that he did not get any medical examination conducted of the accused or that all the investigation was conducted in the police station or that all the documents were prepared in the police station.
10 PW-4 ASI Deen Dyal is the IO of the case. He deposed to the effect that on 08.03.2015 when he was in the PS then complainant/PW- 1 alongwith PW-3 Ct. Mukesh Kumar and accused Lokesh came to the police station, accused was produced before him alongwith one black CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 6 of 28 bag containing one wrist watch made Fastrack, one candle stand, one mobile phone Nokia, one TV remote TATA Sky, some documents and one cutter/plas (pliers) and thereafter the said articles were seized vide Seizure Memo Ex. PW 1/C, bearing his signatures at point C. The Rukka prepared by PW-4 upon the written complaint of PW-1 has been proved as Ex. PW 4/A. The said Rukka was given to PW-2 for registration of FIR. Thereafter, PW-4 alongwith PW-1, PW-3 and accused went to the spot and after that Site Plan Ex. PW 1/B bearing signatures of PW-4 at point B was prepared at the instance of the complainant. Ex. PW-1/D (Identification Memo of the place of incident) & Ex. PW 1/G (Disclosure Statement of the accused), bear the signatures of PW-4 at point D and C respectively. The Arrest Memo and Personal Search Memo i.e. Ex. PW 1/E and Ex. PW 1/F respectively, bear signatures of PW-4 at point C. The accused was got medically examined. PW-4 correctly identified the accused present in the court and the case property Ex. P1 (colly) and Ex. P2. In cross-examination by Ld. defence counsel, PW-4 deposed that the stolen property was in the hand of the accused when he was produced by PW-3 and PW-1 before him in the police station and the said stolen property was inside a black bag. He deposed that the said black bag alongwith aforesaid case property had been deposited in the Malkhana, PS Vasant Vihar. He denied the suggestion that the said black bag was neither deposited in Malkhana nor was produced before the court. He deposed that the MLC of the accused was got done at Safdarjung Hospital which was filed alongwith the Challan. He further deposed that no other person other than complainant/PW-1 and Ct. Mukesh/PW3 came to the police station. He deposed that although he CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 7 of 28 inquired from the landlord of the complainant but he did not record his statement and he only told that the complainant was his tenant. He deposed that he did not inquire from other people/crowd.
11 The statement of the accused/appellant was recorded u/s 313 Cr. PC on 30.03.2016, in which he denied all the material incriminating circumstances appearing in prosecution evidence against him. He further stated that he was only passing through said passage/gali, someone else had committed theft, he was wrongly apprehended by the public and nothing was recovered form him. He stated that he had been falsely implicated in this case and preferred not to lead any defence evidence.
12 The Ld. Trial Court after hearing the arguments of Ld. APP for State as well as the Ld. defence counsel, vide judgment dated 26.04.2016 convicted the accused/appellant holding that most of the contradictions pointed by Ld. counsel for accused were minor contradictions which were bound to happen even in the case of most truthful witnesses in the circumstances of the case and could not be given undue weight and that the contradictions pointed out by the defence to the effect that no lock was recovered in the matter to show that the accused forced his entry into the said premises, the black bag was never produced in the court, the pliers were not mentioned in Ex. PW 1/A, variation in the statement of PW-1 regarding the seeing of stolen articles at the spot or at the police station etc. did not go to the roots of the matter. The Ld. Trial Court held that the case of the prosecution was not that the accused forced his entry into the premises of the complainant but the CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 8 of 28 case was that the accused entered into the premises of the complainant through balcony which was not meant for entry into the said premises and as such there was no question of recovery of any broken lock from the spot of incident or from the possession of the accused. It was further held by the Ld. Trial Court that all other articles as produced during the evidence were correctly identified by the witnesses and therefore even if the said black bag was not produced in the court then also it would have no consequential bearing upon the case of the prosecution. The Ld. Trial Court also held that it was quite possible that the said bag may also have been produced at the time of production of case property during the testimony of PW-1 but inadvertently the same was not mentioned on the record. The Ld. Trial Court also referred to Ex. PW 1/A holding that the cutter (plas) was also mentioned to be in the bag. The Ld. Trial Court also rejected the submissions of the defence that independent public witnesses were not examined. The Ld. Trial Court held that no plausible explanation has been brought on record as to why the complainant and other witnesses would falsely implicate the accused in this case and further the accused has not preferred to lead any defence evidence to substantiate his defence. The Ld. Trial Court thus came to the conclusion that prosecution had duly proved its case against the accused for commission of offences punishable u/s 380 IPC and Section 454 (II) IPC beyond shadow of any reasonable doubt. Thus, the appellant herein was convicted for the offences punishable u/s 380 IPC and Section 454 (II) IPC.
13 The Ld. Counsel for the appellant/convict argued that the Ld. Trial CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 9 of 28 Court failed to appreciate as to how the appellant could have entered the house of complainant/PW-1 when the house had been locked by PW-1 and that the case of the prosecution is not that the appellant entered into the house of the complainant by breaking the lock. He further argued that the Ld. Trial Court failed to appreciate that no broken lock or otherwise was recovered from the accused or complainant or any person or was found anywhere in broken or unbroken condition in the premises. He contended that the Ld. Trial Court failed to appreciate that the appellant could not have entered into the premises from where the stolen property was alleged to have been moved without breaking the lock. He contended that the Ld. Trial Court did not consider that the complainant had not seen the accused entering or coming out of his room and had seen only one person jumping from the balcony and running who was caught by some passersby. He argued that the Ld. Trial Court failed to appreciate that as the accused was in an inebriated condition, therefore he was not in a position to jump from the first floor balcony with the alleged stolen property and to attempt to run away. He argued that the Ld. Trial Court did not appreciate that the bag containing the stolen articles was never produced by the prosecution during the evidence. He argued that the Ld. Trial Court did not take into account the fact that there is a contradiction in the testimony of the prosecution witnesses regarding the spot where the stolen articles were recovered from the said bag i.e. at the spot or at the police station. He contended that the non production of black bag makes the entire recovery doubtful and that the Ld. Trial Court was itself in doubt regarding the production of the black bag. He thus argued that the prosecution has miserably failed to prove CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 10 of 28 its case against the accused beyond reasonable doubt and the benefit should go to the accused/appellant. He argued that the Ld. Trial Court passed harsh sentence upon the convict as the sentences were passed consecutively. He however admitted that the accused/appellant is facing trial in three other cases i.e. FIR No. 212/15 PS Vasant Vihar under Section 380/457/511/506/324 IPC, FIR no. 688/15 PS Mehraulli under Section 380/454 IPC and FIR No. 237/12 PS Vasant Vihar under Section 394/411/34 IPC. He thus argued that the impugned judgment and the order on sentence be set aside.
14. Ld. Addl. PP for the State has vehemently opposed the aforesaid submissions of ld. counsel for the accused / applicant and contended that the impugned judgment and order on sentence were based on sound reasoning after proper appreciation of the facts and evidence appearing against the appellant / accused. He further argued that the complainant / PW1 is a trustworthy and natural witness and the ld trial court has correctly relied upon the testimony of PW1, PW3 and PW4. He argued that the stolen case property i.e Ex P-1 ( colly.) was recovered from the possession of the accused and that the accused was caught red handed at the spot. He argued that the complainant /PW1 correctly identified the case property in the court and the arrest memo Ex PW1/E of the accused also bears signatures of PW1 at point A and therefore there was also no dispute regarding the identify of the accused. He argued that some minor variations in the testimony of the witnesses were bound to occur due to lapse of time. He contended that the case of the prosecution is that the accused entered into the first floor premises of the complainant through its balcony which was not CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 11 of 28 meant for entering into the said premises and therefore the learned trial court rightly came to a conclusion that there was no question of recovery of any broken lock from the spot of incident or from the possession of the accused. He also contended that the non-production of black bag containing the stolen articles would not dent the case of prosecution as the stolen articles which were primarily important in this case were correctly identified by the prosecution witnesses including the complainant/PW1. He argued that the ld trial court further rightly held that the joining of independent public witnesses was not an indispensable proposition and where public witnesses were not ready to join investigation or were not available, the prosecution case could not be thrown away on the mere ground that independent public witnesses were not joined in the investigation. He thus argued that the prosecution witnesses as produced and examined in this case especially PW1 and PW3 have proved the case of prosecution beyond reasonable doubt against the appellant / accused and argued that there was no illegality in the impugned judgment. He argued that the learned trial court rightly took a harsh view while imposing sentence upon the appellant / convict with directions that sentences would run concurrently as the appellant is a habitual offender with admitted fact that he is facing trial in three other different matters of theft / robbery.
15. I have heard the arguments on the appeal and perused the record including the trial court record.
16. Section 378 IPC and Section 380 IPC providing the definition of 'Theft' and 'Theft in dwelling house, etc.' as under :
CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 12 of 28 " 378. 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.
Explanation 1. ............
Explanation 2. ............
Explanation 3. ............
Explanation 4. ............
Explanation 5. ............."
"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."
Sections 441, 442, 445 and 454 IPC provide for Criminal trespass, House trespass, House breaking and Lurking house
-trespass or house-breaking in order to commit offence punishable with imprisonment as under : -
"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."
"442. House-trespass- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as human CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 13 of 28 dwelling or any building used as a place for worship, or as a place for the custody of the 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."
"445. House breaking .- a person is said to commit ''house- breaking'' who commits house-trespass 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-........................
Secondly- If he enters or quits through any passage not intended by any person, other than himself or an 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 -................
Fourthly-..............
Fifthly-...................
Sixthly-..................
Explanation-............... "
"454. Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment.- Whoever commits lurking house-trespass or house breaking 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 three 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 CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 14 of 28 ten years."
17. After having noted down the relevant provisions of the law on the subject, it is now proposed to discuss the prosecution evidence of the witnesses relevant to the issue.
PW1/ complainant has deposed to the effect that on 08.03.2015 at about 06.00 p.m he had locked his house ( 61-A, First Floor, Ber Sarai, New Delhi ) and at about 06.30 p.m when he returned back, he saw that the door of balcony of his house was open. He deposed that he immediately ran towards the balcony and saw that one person jumped from the balcony and was running. PW1 raised an alarm, immediately went down and saw that some passersby had caught the said person. PW1 correctly identified the accused as present in the court as that person. He deposed that some public persons had also gathered at the spot, the accused was carrying a bag and on checking the same it was found to contain one remote of his TATA Sky, photocopies of some documents, his fastrack watch, his Nokia mobile of black colour, his candle stand which had been stolen by the accused and some other documents and articles. PW1 gave a handwritten complaint Ex PW1/A to the police, the recovered articles along with the bag were seized vide seizure memo Ex PW1/C, the site plan Ex PW1/B was prepared at the instance of PW1 and the police also prepared the pointing out memo of the spot Ex PW1/D at his instance. The arrest memo and the personal search memo i e Ex PW1/E and Ex PW1/F respectively both bear the signatures of PW1 at point A. The witness Ex PW1 also correctly identified the case property which was stolen by the accused as Ex P1 (colly.) and one plier as Ex P2.
CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 15 of 28 In cross examination by ld defence counsel, PW1 deposed that he had not seen the accused besides his room but saw him running from his balcony and that he had seen the accused at the spot. To a specific question as to where PW1 had seen the stolen articles as recovered from the accused, PW1 replied that he had seen his stolen articles in the possession of the accused in the Police Station. He also deposed that the stolen articles were seized in his presence. He inter alia denied the suggestion of learned defence counsel that the case properties were planted upon the accused in connivance with the police officials or that his stolen articles were not recovered from the possession of the accused.
18. The testimonies of PW2, PW3 and PW4 have already been mentioned and discussed in detail in the earlier part of the judgment.
19. The material prosecution witnesses i.e PW1, PW3 and PW4 have corroborated each other on material aspects of the case and nothing substantial has cropped up in their cross examination to discredit their testimony so as to make it unreliable. PW1 has specifically identified the accused in the court as the person who at the relevant time jumped from his balcony, was running and upon an alarm raised by PW1 saw that some passersby had caught him. The arrest memo Ex PW1/E dated 08.03.2015 also bears the signatures of PW1/complainant as a witness i.e. the accused / appellant was arrested upon the identification of PW1. PW1 in his cross examination has also deposed that although he has not seen the accused besides his room but he saw him running from his balcony. The identity of the CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 16 of 28 accused / appellant as the person who committed theft at the address of the complainant and thereafter jumped from the balcony in an effort to run away with the stolen articles but was apprehended by some passersby upon the alarm raised by PW1 has thus been established beyond reasonable doubt. Further, the stolen articles Ex P1 (Colly.) and Ex P2 which were recovered / seized from the possession of the accused / appellant vide seizure memo Ex PW1/C have been correctly identified by PW1, PW3 and PW4/IO. PW3 has also deposed to the effect that that on 08.03.2015 he was on patrolling duty at the area of Ber Sarai, at about 06.30 p.m at Ber Sarai village a crowd had gathered and they were holding the accused who was carrying a black bag with him. He further deposed that PW1 told him there that the accused had stolen some of his articles from his room and was escaping from the scene. He also deposed that thereafter he brought PW1 and accused to the PS where IO / PW4 searched the said bag from which the above mentioned stolen articles were recovered which were seized vide seizure memo Ex PW1/C. Similarly, PW4/IO has deposed that on 08.03.2015, PW1 along with PW3 came to the PS and produced the accused before him along with one black bag along with the stolen articles which were seized vide Seizure Memo Ex PW1/C. From the testimony of PW1, PW3 and PW4 the prosecution has thus been able to prove beyond reasonable doubt that the appellant entered into the above said first floor property in possession of PW1 / complainant which was being used as a human dwelling to commit an offence of theft and he effected his entrance into the said house through balcony by scaling over or climbing over any wall or building and thus he thereby committed theft in dwelling house and also house breaking in CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 17 of 28 order to commit offence of theft i.e the offences punishable u/s 380 IPC and under Section 454(Part II).
20. The ld. defence counsel has argued to the effect that the learned trial court failed to appreciate as to how the appellant could have entered the house of PW1 when the house has been locked by PW1, the case of the prosecution is not that the appellant entered into the house of the complainant/PW1 by breaking the lock, no broken lock was recovered from the appellant or complainant or any person or was found anywhere in broken or unbroken condition in the premises and that the appellant could not have entered into the premises at first floor without breaking the lock at the first floor. The said arguments have no strength and the ld trial court rightly held in the impugned judgment that the case of the prosecution is not that the accused forced his entry into the premises of the complainant but the case of the prosecution is that accused enter into the premises of the complainant through balcony which was not meant for entry into the said premises, therefore, there was no question of recovery of any broken lock from the spot of incident or from the possession of the accused or any one. In this regard, the testimony of PW1 also becomes very important as he has deposed that on 08.03.2015 at about 06.00 p.m. he had locked his house ( 61-A, first floor, Ber Sarai, New Delhi ) and at about 06.30p.m when he returned back he saw the door of the balcony of his house open upon which he ran towards the balcony and saw one person (accused as identified by PW1 in the court) had jumped from the balcony, was running, he raised an alarm and saw that some passersby had caught the said person. In cross examination also, PW1 deposed CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 18 of 28 to the effect that he had seen the accused running from his balcony. In these circumstances, there was no question of recovery of any broken lock from the possession of the accused or the premises or the complainant. The said contentions of the ld. Defence counsel were thus rightly rejected by the learned trial court.
21. The learned defence counsel further argued that the learned trial court did not consider that the complainant had not seen the accused entering or coming out of his room and had only seen one person jumping from the balcony and running who was caught by some passersby. This contention of the learned defence counsel is also liable to be rejected and is without any merits in view of the testimony of PW1/complainant who has specifically deposed that on 08.03.2015 at about 06.00 p.m. he had locked his house, at about 06.30p.m when he returned back he saw that the door of balcony of his house was open, he immediately ran towards the balcony, saw that one person jumped from the balcony, was running, PW1 raised an alarm, immediately went down and saw that some passersby had caught the said person. PW1 thereafter correctly identified the accused as present in the court as that person. The said testimony would show that PW1 has identified the accused as the person who jumped from the balcony of his first floor house and was subsequently caught by some passersby with the stolen property upon an alarm raised by PW1. Even in his cross examination, PW1 deposed to the effect that he had seen the accused running from his balcony. The arrest memo of the accused Ex PW1/E also bears the signatures of PW1 and PW3 as a witness. PW1, PW3 and PW4 have also deposed to the effect that the case CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 19 of 28 property Ex P1 (Colly.) and Ex P2 was recovered from the possession of the accused / appellant which was seized from him vide seizure memo Ex PW1/C. In the said circumstances,the identity of the appellant/accused as the perpetrator of the case crime has been established beyond reasonable doubt by the prosecution.
22. The ld. defence counsel has argued that the learned trial court failed to appreciate that as the accused was in an inebriated condition, therefore, he was not in a position to jump from the first floor balcony with the alleged stolen property and thereafter to make an attempt to run away.
To appreciate the said contention it would be relevant to examine the trial court record. Ex PW1/A that is the complaint dated 08.3.2015 by complainant / PW1 to SHO concerned would show that the complainant mentioned that the accused seemed to be a drug addict and was trying to harm himself. PW3 Ct. Mukesh Kumar in his cross examination has deposed that the accused was appearing in an drunken condition. It is the case of the prosecution that the accused was medically examined on 8.3.2015 and his MLC is also on record. Said MLC dated 8.3.2015 of Safdarjung hospital would show that it has not been mentioned that the accused Lokesh Kumar was drunk or was in a drunken condition. Even otherwise, it has not been deposed by any prosecution witness that the appellant / accused was in such a drunken condition that he could not have jumped from a balcony or could not have attempted to run away with the case property. No such suggestion was also given by the defence to any prosecution witness during cross examination of the prosecution witnesses. The accused also did not CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 20 of 28 lead any defence evidence in support of his contentions. In view of said discussion, the said contention of the learned defence counsel is without any merits and is liable to be rejected.
23 The next main contention of the learned counsel for the appellant was that the learned trial court did not appreciate that the black bag containing the stolen articles was never produced by the prosecution during the evidence which has adversely prejudiced the defence of the accused. He also contended that the non production of the black bag during the evidence made the entire recovery doubtful.
The testimony of PW1 would show that he has deposed to the effect that the accused was carrying a bag and on its checking it was found containing the case stolen property. PW3 has also deposed to the effect that he saw that some crowd had gathered at the spot which was holding the accused who was carrying a black bag with him and the said black bag upon search at the PS was found to contain the stolen property. PW4/IO has also deposed that PW1 and PW3 produced accused before him at the PS with one black bag containing the above said stolen property and one pliers which were seized vide seizure memo Ex PW1/C. PW4 has deposed in his cross examination that the stolen property was in the hand of the accused inside the black bag when he was produced before him at the PS and the said bag along with aforesaid case property was deposited in Malkhana, PS Vasant Vihar. He denied the suggestion that the said black colour bag was not deposited in the Malkhana. The seizure memo Ex PW1/C would also show that the case stolen case property and one pliers of blue colour were infact in a black colour bag. It is , however, an CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 21 of 28 admitted possession that the said black colour bag containing the case property was not proved by the prosecution before the ld. Trial court.
It is however to be seen if non production of said black colour bag has prejudiced the defence or not. In this regard, it has to be appreciated that the above said stolen property Ex P1 (colly.) and one plier ExP2 as contained in said bag were in fact produced during the testimony of material witness PW1/ complainant and were correctly identified by him. In these circumstances, even if the said black bag was not produced in the court then also it would have no consequential bearing upon the case of the prosecution and in no manner its non production could have adversely prejudiced the defence. The ld trial court in the impugned judgment rightly appreciated this fact by holding that as the other articles ( stolen property and pliers) were produced during the evidence and were correctly identified by the witnesses, therefore, even if the said black colour bag in question was not produced in the court then also it would have no consequential bearing on the case of the prosecution. The said contention is thus also liable to be rejected and would not help the appellant/convict.
24 The last contention raised by the learned counsel for the appellant was that the learned trial court did not take into account the fact that there was a contradiction in the testimony of the prosecution witnesses regarding the spot where the stolen articles were recovered from the said bag i.e. at the spot or at the PS. In this context, Ex PW1/A would show that the complainant had stated in his complaint to the police that accused was carrying a bag in which the above articles were recovered at the spot itself and a cutter CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 22 of 28 plas was also there. PW1 in his cross-examination, however, deposed that he saw the stolen articles in the possession of the accused in the PS and that the stolen articles were seized in his presence. PW3 has also deposed in his cross-examination that he did not check the bag at the spot and took the accused along with the bag to the PS. The ld trial court in the impugned judgment has held that most of the contradictions pointed out by the ld defence counsel were only minor contradictions which were bound to happen even in the cases of most truthful witnesses in the present circumstances and could not be given undue weight and they do not go to the roots of the matter. The ld trial court rightly came to the said conclusion and further rightly referred to the judgment of Hon'ble Supreme Court of India in case of Shivappa & Ors Vs. State of Karnataka, AIR 2008 SC 1860, wherein the Hon'ble Supreme Court of India inter alia held that minor discrepancies or some improvements also, would not justify rejection of the testimonies of the eye witnesses, if they are otherwise reliable. It was also held in that case that some discrepancies were bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court. The ld. Trial court further rightly referred to the judgment of Hon'ble Supreme Court of India in case Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 wherein it was inter alia held that overmuch importance can not be attached to minor discrepancies and that the discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore can not be annexed with undue importance, more so when all the important 'probabilities factor' echoes in favour of the CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 23 of 28 version narrated by the witnesses.
In the present case also, it is only a minor discrepancy which do not go to the root of the matter and it does not shake the basic version of the prosecution witnesses including PW1 and therefore said minor discrepancy sought to be highlighted by the ld counsel for the appellant can not be given undue importance. Even otherwise, PW1 is a truthful and reliable witness and his testimony in material terms can be relied upon. The said contention is thus also liable to be rejected.
25 The ld trial court in the impugned judgment also rightly rejected the contention of the defence that the persons who apprehended the accused while he was running away with the stolen articles have not been made witnesses in this matter. The ld trial court in that context rightly referred to the judgments of Hon'ble Supreme Court of India including the judgment in case of Birendra Rai and Ors Vs. State of Bihar, AIR 2005 SC 1284 wherein it was inter alia held by the Hon'ble Apex Court that mere failure to examine all the witnesses who may have witnessed the occurrence would not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. It was also held that the reality can not be ignored that many eye witnesses shy away from giving evidence for obvious reasons. The ld trial court thus rightly held in the impugned judgment that the joining of the independent public witnesses was not an indispensable proposition and that the public in general was reluctant to come forward to depose before the court and have indifferent attitude in the investigation of crime. Even otherwise, as discussed above, the testimony of the prosecution witnesses including CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 24 of 28 PW1 is truthful and reliable and further the accused has failed to show any ground as to why the complainant / PW1 would implicate him in a false case.
26. In view of the forgoing discussion, I find no illegality in the impugned judgment dated 26.04.2016 of the ld trial court vide which the appellant/accused was convicted u/s 380 and 454(part II) IPC. The impugned judgment does not suffer from any infirmity or illegality and hence does not call for any judicial interference by this court in exercise of its appellate jurisdiction. I,therefore, uphold the conviction of the appellant/accused for the offences punishable u/s 380 and 454(part II) IPC.
27. As far as order on sentence dated 05.05.2016 is concerned, the ld counsel for the appellant has argued that the sentence given to the appellant is harsh as it has been directed that the sentences shall run consecutively. On the other hand, ld Addl. PP for State argued that the learned trial court has taken a reasoned view while passing the impugned order on sentence dated 05.05.2016 and that the sentence awarded is proportional to the gravity of the offence committed. He argued that the appellant is a habitual offender and is facing trial in three other similar matters, therefore, he is not entitled to be released on probation of good conduct and the learned trial court has not committed any illegality while passing the order that the sentences would run consecutively.
28. As discussed above, the appellant has been convicted under CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 25 of 28 Section 380 IPC and Section 454 (part II) IPC. Section 380 IPC carries punishment of imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 454(part II) IPC carries the punishment for a term of imprisonment which may extend to ten years if the offence intended to be committed is theft and fine. The ld. trial court rightly held that the present matter pertains to the incident in which the convict committed theft of watch, mobile phone and some other article of the complainant after entering into his premises through a balcony. The ld trial court also held that the incidents of theft / burglary are on rise in our society. The ld trial court further rightly placed reliance upon the judgments of Hon'ble Supreme Court of India in cases B.G.Goswami Vs. Delhi Administration, (1974)3 SCC 85, Shailesh Jasvantbhai Vs. State of Gujarat, (2006) 2 SCC 359, Ahmed Hussein Vali Mohammed Saiyed Vs.State of Gujarat, (2009) 7SCC 254, Hazara Singh Vs. Raj Kumar, 2014 II AD (S.C.) 137 and Ankush Shivaji Gaikwad Vs. State of Maharashtra, ( 2013) 6 SCC 770 and rightly observed that undue sympathy to convicts of such offences would do more harm to the justice system, to efficacy of law and the society at large as it could act as a moral booster to probable offenders of such crimes / offences. The ld trial court further relied upon the previous conviction record of the convict / appellant mentioning that he was involved in many other cases of theft / house burglary registered at different time period ranging from year 2012 to 2015. During arguments , it was also an admitted fact before this court that appellant is facing trial in three other similar cases i.e FIR no. 212/15 PS Vasant Vihar under Section 380/457/511/506/324 IPC, FIR no. 688/15 PS Mehraulli under Section 380/454 IPC and FIR no.
CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 26 of 28 237/12 PS Vasant Vihar under Section 394/411/34 IPC. It thus seems that the appellant is a habitual offender and has indulged in other such type of cases also. In the said circumstances, facts of the case and as he is a repeat and habitual offender, it is held that the appellant is not entitled to any leniency or benefit of release on probation of good conduct. No mitigating circumstances have been argued before this court by the ld counsel for the appellant, however, the mitigating circumstances as sought to be referred by the ld counsel for the convict during the arguments on sentence before the ld trial court would be also of no help to the appellant in view of the aggravating circumstances as mentioned above including the fact that he is a habitual offender and is involved in many such type of offences. Keeping in view the above said aggravating and mitigating circumstances and the facts of the case, it seems that there is no infirmity in the impugned order on sentence as it seems to be just and meet the principles of natural justice and the ld. trial court has rightly held that the sentences under section 380IPC and section 454 (part II) IPC shall run consecutively. Benefit of Section 428 Cr.P.C and section 68 & 69 IPC shall be available to the convict and no order as to the compensation has been rightly made by the ld trial court as the convict is already in JC in some other matters also. The ld trial court is directed to release the total fine of Rs. 10,000/- as paid by the accused on 05/05/2016 to the complainant as compensation, if he so wishes to receive the same.
29. The present appeal, as filed by the appellant, is thus dismissed being devoid of any merits.
CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 27 of 28
30. TCR be sent back with copy of the judgment.
31. Appeal file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 17.09.2016 ( Amit Bansal )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi
17.09.2016
CA no. 12/1/16 FIR No. 291/15 PS Vasant Vihar Lokesh Vs. State Pages 28 of 28