Delhi District Court
State vs . : Sandeep @ Tubu on 22 June, 2023
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Sandeep @ Tubu
FIR No : 76/22
U/s : 457/380/411 IPC
P.S. : Dwarka South
1. CNR No. of the Case : DLSW020159442022
2. Date of commission of offence : 14.02.2022
3. Date of institution of the case : 13.04.2022
4. Name of the complainant : Sh Munish Chaudhary
5. Name of accused, parentage &
Address :Sandeep @ Tubu, S/o Sh
Pramod Mishra, R/o Plot
No. 26, Sector 8, Dwarka,
Near Bagdola Village,
New Delhi.
6. Offence complained of :457/380/411 IPC
7. Plea of the accused :Pleaded not guilty
8. Final order :Convicted
9. Date of final order :22.06.2023
FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 1 of 26
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. Amit Sharma, Ld. LAC for accused.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 14.02.2022 at around 3.30 a.m. at B-292, Sector 8, Dwarka, New Delhi, the accused, Sandeep @ Tubu committed lurking house trespass/house breaking for the purpose of committing the theft from the house of the complainant, Mr. Munish Chaudhary in the night. It is the case of the prosecution that the accused was found in possession of stolen articles i.e. 50 taps, 8 soaps, 8 wine bottles. As such, it is alleged that the accused, Sandeep @ Tubu has committed the offence punishable under section 457/380/411 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 76/2022 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The Ld. Predecessor of this court took the cognizance against the offence and a copy of the chargesheet was supplied to the accused in terms of section FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 2 of 26 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 457/380 and 411 of IPC was framed against the accused Sandeep @ Tubu on 04.05.2022. The accused person pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Munish Chaudhary PW-2 Sh. Nitin Kumar PW-3 Sh. Sachin Kumar PW-4 ASI Kulbhushan PW-5 SI Omkar PW-6 ASI Ashok DOCUMENTARY EVIDENCE Ex. PW1/A Statement of complainant Ex. PW 1/B Site Plan Ex. PW 1/C Seizure memo of case property Ex.P1 (colly) Photographs of case property Ex. P2 (colly) Case property i.e. Hammer, chisel and cutter Ex. PW 4/A Investigation Report Ex.P3 (colly) Photographs of the spot Ex. PW5/A Rukka Ex. PW5/B Arrest Memo Ex. PW5/C Personal search memo Ex. PW5/D Seizure memo ADMITTED DOCUMENTS Ex. A1 FIR along with certificate u/s 65 B of IEA Ex. A2 DD No. 12 A FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 3 of 26
4. PW-1, Sh Munish Chaudhary has deposed that he along with his family were residing at the above-mentioned address and he is running his own business i.e., IT and security and on the day of incident he was not present at his house. On intervening night of 13-14.02.2022 at around 11.00 PM, he received a call from his neighbour namely Sh. Nitin and Sachin that they have nabbed a thief while scaling the boundary wall of his house. He was also informed by them that a lot of stolen articles had been recovered from his possession and they already informed the police. He requested them not to leave the thief and police till his arrival at the spot so that he can identify his articles recovered from the possession of thief. He reached at the spot within two hours as he was out of Delhi. The police along with his neighbours including Nitin and Sachin were present along with the accused present and the police had shown him the articles recovered from the possession of the accused. He identified all the articles which were recovered from the possession of the accused.
He has correctly identified the accused. Thereafter, he opened the gate of his house and found the side shutter were breached and partly opened, the iron jali of exhaust place was completely removed and bath tub and all the fittings were missing and inside the household articles were ran sacked and a lot of items were missing which were not recovered from the possession of the accused. Thereafter, he went to the upper stairs to first floor and second floor along with police and found that in the same manner bathroom fittings were missing, although first FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 4 of 26 floor and second floor were vacant and no articles were kept there. More than 90 bath fittings, 6 or 7 hyderabadi pearls and one 10 rupees containing 100 leafs, plastic pipes of bath tub, basin, hammer and chasel, iron rod, few clothings including jacket, towel, shirts along with other articles including 8 bottles of liquors were recovered. His statement was recorded by the police and police prepared the site plan at his instance and case property was recovered from the possession of the accused by the IO and thereafter, he along with the accused and police officials went to PS where his statement was recorded. Police had instructed him to check his house and give the complete details of the missing articles and on next day, he had given the additional list of the missing articles to the police through whatsapp. He has correctly identified the photographs of the case property i.e., hammer, cutter and chisel and the photographs of the case property. In his cross-examination, he stated that the construction of building was completed in 2002. He used to stay in the building. The fitting was installed in 2002 itself and along with the construction of the house, only normal repairs were done by him from time to time. Nitin and Sachin never sent him any video regarding the incident on his phone. The taps were removed with the help of hammer and chisel. He has received the possession of stolen articles of the present case and thereafter, some of them have been disposed off to the scraper by him. He had not given any bill of any stolen articles to the IO. He had given the bills of new purchase made by him of the taps.
FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 5 of 26Again said, he purchased the new taps, shower and all bathroom fittings in 2022. He reached at the spot in between 3.00 to 4.00 AM on 14.02.2022. When he reached at the spot, he found a PCR van along with the IO and police officials and his neighbour namely Nitin and his brother but he does not remember his name and one more neighbour who is from Army. All the neighbours along with police officials entered inside his house i.e., spot of incident. The neighbours remained on the ground floor and he along with the police officials went at the third floor. Crime team reached at the place of incident after 30 to 40 minutes, meanwhile, he along with IO did the inspection of the entire house. Crime team took the photographs of all the floors of his house. Crime team remained at the spot for about 1 to 1 ½ hour. The IO has noted down his complaint and also prepared the list of articles which were stolen from the spot and further asked him to give the list of any other articles which were missing at that time. The IO also prepared seizure memo of stolen articles that were recovered from the thief when he was caught red handed on the spot. At around 6.00 to 7.00 AM, the house of accused was also searched after one hour of incident. A brand new shirt along with couple of tools which were used in construction work, were recovered by the IO. He never handed over the bills of the tools recovered from the accused's house. He remained at the spot for 3-6 hours. The statement of the eye witnesses were taken in front of him. Witnesses were asked about the incident verbally but the same was not taken in front of him. They were on and FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 6 of 26 off going inside the house with the IO and at that time the discussion was going on about the incident. The eye witnesses namely Nitin and Sachin remained on the spot till the time police left the spot with the accused and the stolen articles. He does not remember how many pages the IO asked him to sign, however, he had signed two documents i.e., complaint and seizure memo. The IO had verbally taken information from Sachin, Nitin and the Army personnel namely JCO Raj Kumar (his neighbours) and that around 7.00-8.00 AM, IO along with other police officials left the spot.
5. PW-2 Sh. Nitin Kumar, has stated that he along with his family are residing at the above-mentioned address and running his own business i.e., Travel Agency. On intervening night of 13-14.02.2022 at around 2.35 AM, he heard noises which was coming from the house number B- 292 i.e., house of the complainant. Since no other house is situated near their house and thereby he was unable to locate the proper place from where the noise was coming. Thereafter, he came inside his house. At about 3.10 AM, he again heard noises. Thereafter, he peeped from his window and found that one person was moving inside the ground of the house of the complainant and the said person was keeping the liquor bottles on the wall. Thereafter, the said person had hanged a bag on the jali, thereafter, he again thrown another bag outside the wall. He informed his brother namely Sh. Sachin who was also present at the house about the incident. Thereafter, he went near the spot FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 7 of 26 and the said person was apprehended by him while he was trying to scale the boundary wall. Thereafter, he had informed the landlord Sh. Munish Chaudhary and also to the police. Iron taps, grocery items, currency note in the denomination of Rs.10/- and bottle of liquor were recovered from the possession of the accused in the morning and that the complainant Munish Chaudhary reached at the spot and he identified the recovered articles from the accused. His statement was recorded by the police. He has correctly identified the accused and the case property i.e., one hammer, one chisel/chheni, one iron cutter and had also identified the photographs of the case property i.e., liquor bottles, soaps, shampoo bottle, some steel taps kept in a yellow-coloured plastic sack. In his cross examination, he has stated that the accused is not known to him. At the time when they apprehended the accused, he did not know where the accused used to live. The IO recorded his statement at the spot itself. The IO himself recorded the same. He did not sign his statement at that time and he had mentioned in his statement that he worked at a private company. The company at which he worked is a travel agency company. The said travel agency is a US based company and his duty timings are 6.30 PM to 3.30 AM. He used to go to his office from Monday to Friday. The date of incident was Sunday. He was working at his house at the time of incident. His statement was recorded in the morning at about 6.00 AM. He was residing at his abovesaid address since last four years. The house of complainant is situated in front of his house. The FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 8 of 26 complainant used to live at the said house in the day hours but nobody used to live in the said house by the night. He knew that the complainant lived in the said house since last four years. He had apprehended the accused when he was about to jump from the railing affixed on the wall. The accused used to live in the adjacent house to the house of the complainant but they came to know of the said fact when the accused told them that he lives in the adjacent flat when he was apprehended by them. IO might have recorded his statement by hand. The IO had only written down his name and father's name at that time in his presence. He had not signed any documents at that time. The IO had noted down his details and prepared the list of articles in his presence. He had not called the complainant. The complainant was called by one neighbour who resides on the 3rd floor of the said building. They had called the neighbourhood people after they apprehended the accused. He had not mentioned this fact when the IO recorded his statement. He had gone to the house of the complainant after he came at the spot at about 5/5.30 AM. The police officials had reached the spot prior to the complainant. The police had not called any forensic team in his presence. Some people had reached at the spot, however, he does not know whether they were from forensic team or not. Firstly, the complainant had entered his house along with police officials. He does not remember whether the police officials had done videography or not. At the time when they apprehended the accused, he had kept some bottles on the wall while some articles in a polythene have been FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 9 of 26 thrown by him outside the wall while some other articles were also kept by him on the wall and some articles were hanged by him on the grill. He had videographed the articles hanging on the grill which he can show, if required. Again said, he had not videographed as he was holding the accused. The videography was done by his brother Sachin. His flat is situated on the upper ground floor. He heard the noise on the night of alleged incident.
6. PW3 Sh. Sachin Kumar has stated that he along with his family are residing at the above-mentioned address and running his own business i.e., Travel Agency. On intervening night of 13-14.02.2022, he was sleeping at his house. He was woken up by his mother at about 2.30-3.00 AM and she informed him that his brother namely Sh. Nitin had caught a thief in the house of the complainant namely Sh. Munish Chaudhary. Thereafter, he went near his brother and found that the accused was apprehended by his brother along with some stolen articles like iron tap and liquor bottles. Thereafter, the owner of the house namely Sh. Munish Chaudhary was informed by his brother. Police was also called by him. At about 4.30 AM, the complainant reached at the spot after arrival of the police. Thereafter, he left the spot. His statement was recorded by the police. He has correctly identified the accused and the case property and the photographs of the case property. In his cross- examination, he stated that the accused is not known to him. At the time when they apprehended the accused, he did not know where the accused used to live. He was FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 10 of 26 residing at his abovesaid address since last three to four years. His brother had apprehended the accused and he had reached at the spot later on. He had heard some noises of people. The accused was trying to flee from the spot when he was apprehended. The house of the complainant is usually vacant and the complainant sometime visit their house. The building was constructed prior to the time when they shifted there. He had called the police after he reached at the spot. The complainant was called by one of their neighbour who resides on the 3 rd floor. He had reached at the spot by himself. He had not videographed the incident. The incident in question is of about 3.30 /4.00 AM. He reached at the spot after about 10-15 minutes of the incident. He had already woken up after hearing the noises when his mother told him that the accused was apprehended by his brother Nitin. He had called on 100 number after the neighbour of 3rd floor suggested to him to call the police. The accused was apprehended by his brother just outside the house of the complainant. About half of the articles were with the accused while some of the articles were still inside the house of the complainant. At the time when the accused was apprehended, he had some minor articles such as shampoo bottles and some steel taps. The PCR had reached at the spot within 10-15 minutes after he called on 100 number. The complainant had reached the spot after the police came to the spot. Thereafter, he along with his brother had left the spot. He was not called to the police station by the police. He does not remember whether police officials had come at his FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 11 of 26 house regarding the present incident. The IO had enquired him regarding the incident and recorded the information given by him. Thereafter, he had not visited or entered the house of the complainant after the day of incident. After the PCR came at the spot, when he and his brother came inside the house and they never went back to the house of the complainant. He came back to his house along with his brother at about 5.30 am.
7. PW4 ASI Kulbhushan has stated that on 14.02.2022 he was posted as ASI at Crime Team, Dwarka South, New Delhi and on that day, on receiving a call from control room, he along with photographer Ct. Anil Kumar reached at the spot i.e. B292, Sector 8, Dwarka, New Delhi and inspected the scene of crime for chance print and lifted two chance prints from the iron almirah i.e. Q and Q2 and sent the same to the Finger Print Bureau, Kamla Market, New Delhi and prepared the report. He correctly identified the photographs. In his cross-examination, he stated that he received the call around 7.30 AM on 14.02.2022. He along with his team reached at the spot at around 8.00 AM. When he reached at the spot, he found the owner along with police staff. When he reached at the spot, the grill /jali of the main gate was found cut. His team had clicked only photographs. His statement was recorded by the IO on the spot on his laptop and he only lifted finger prints from iron almirah and he handed over scene of crime report to the IO. He remained at the spot for ½ hour. Only owner of the property and IO was present when his FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 12 of 26 team was clicking the photographs. The lock of the main gate was intact rather only the jali was found cut. The lock of the main gate as well as catcher gate were intact.
8. PW- 5 SI Omkar has stated that on 14.02.2022 he was posted as ASI at PS Dwarka South and on that day, on receiving DD No.12A regarding theft at B-292, Sector 8, Dwarka, New Delhi, thereafter, he along with HC Ashok reached at the spot. The PCR van was present at the spot. The accused was also found at the spot and he was apprehended by Sachin and Nitin. The owner of the house was not present at the spot and he was called at the spot. After some time, he reached at the spot. The crime team also reached at the spot. The inspection was done by the crime team and photographs were also clicked by the crime team. He recorded the statement of complainant Munish Chaudhary and prepared rukka and handed over the same to HC Ashok for registration of FIR. He went to the PS and after getting FIR registered, he came back at the spot along with copy of FIR and original rukka and handed over the same to him. He prepared the site plan at the instance of complainant and recorded the statement of Sachin and Nitin Kumar who were eye witness of the incident. He also seized the case property i.e., taps, bottle of liquor (8 bottles), 8 soaps, 3 bottles of shampoo and formally arrested the accused and conducted his personal search. Thereafter, they returned to the PS. One hammer, cutter and chisel were handed over to him by the complainant and he told him that they were found at his house and seized the same. He has correctly identified the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 13 of 26 accused and the photographs of the case property and the case property i.e. hammer, cutter and chisel. In his cross- examination, he stated that he got the information around 4.00 AM from the duty officer. The duty officer had given him the mobile number of the caller. He does not remember the number of the caller. The call was either made by Sachin or Nitin. He reached at the spot at about 4.15 AM. When he reached at the spot, the accused was sitting in the PCR van. The owner reached at the spot after 2 hours of his arrival. He called the forensic team who reached the spot within 45 minutes. The forensic team along with him did the inspection of the house and took the photographs and collected the samples of the finger print. The lock of the main door of the house was broken and just after reaching of the forensic team they entered in the house. The forensic team reached at the spot around 5.15 AM and then and there, they entered in the house. There was only one main gate in the house. There was another catcher gate inside whose lock was cut. He prepared the site plan, seizure memo, arrest memo, personal search on the spot. He took the statements of witnesses on the spot. He took the statement of the public persons in the front of the house. There was no CCTV camera installed nearby the place of incident. The accused was also living in the neighbourhood adjacent to the house of the complainant. All the stolen articles were lying on the road except wine bottles which were on the boundary wall of the house. He had not sent the case property to FSL for verifying whether the same has been used for cutting or removal of the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 14 of 26 articles. The house was vacant and complainant used to come there after period of time. He had not taken the finger prints of the accused. He had taken photographs of the stolen articles and prepared the list of the same. He had enquired about the name and address along with details of incident from public witness before giving tehrir. He sent the tehrir at around 12.00 noon. He left the spot at about 1.00 PM. He noted down the statements of witnesses in front of them at the spot. He did enquiry on the basis of pubic witness's statement and had not done any efforts himself to know about the facts. He also took photographs of the place of incident from his mobile. He never filed those photographs with the chargesheet. He put those photographs in his laptop. He has further stated that he had not given any notice under section 91 Cr PC for producing the bills of the stolen articles and he had not prepared items wise list of the articles allegedly recovered from the accused. The complainant had not given any bill of the alleged stolen articles and he had not produced any document which shows that he was the owner of the stolen articles.
9. PW 6 ASI Ashok has stated that on 14.02.2022 he was posted as HC at PS Dwarka South and on that day, on receiving DD No.12A regarding theft at B-292, Sector 8, Dwarka, New Delhi, thereafter, he along with ASI Omkar reached at the spot. The PCR van was present at the spot. The accused was also found at the spot and he was apprehended by the Sachin and Nitin. The owner of the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 15 of 26 house was not present at the spot and he was called at the spot. After some time, he reached at the spot. The crime team also reached at the spot. The inspection was done by the crime team and photographs were also clicked by the crime team. IO recorded the statement of complainant and prepared rukka and handed over the same to him for registration of FIR. He went to the PS and after getting FIR registered, he came back at the spot along with copy of FIR and original rukka and handed over the same to him. IO recorded the statement of Sachin and Nitin Kumar who were eye witness of the incident. IO seized the case property i.e., taps, bottle of liquor (8 bottles), 8 soaps, 3 bottles of shampoo. IO formally arrested the accused Sandeep and conducted his personal search and thereafter, they returned to the PS. He had correctly identified the photographs of the case property and accused. In his cross-examination, he stated that he alongwith IO reached at the spot at about 2.00AM. They used private motorcycle to reach on the spot and when they reached on the spot they found that accused was apprehended by the public. IO prepared the rukka and sent him for registration of FIR. The rukka was given at around 2.30 AM. At around 3.00 AM, he came back on the spot with the FIR copy. He used his personal motorcycle for commuting between police station and the spot. They used their own personal motorcycle to reach on the spot. At about 2.15 AM, the owner of the property reached on the spot. He alongwith IO, PCR personnel and caller went inside the property for inspection. It was a two-storey building. The theft was FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 16 of 26 done on the 1st floor of the house. The forensic team was present at the spot before he came back from the police station. IO prepared seizure memo, arrest memo in his presence. He signed on seizure memo, arrest memo and personal search memo only. He along with IO remained on the spot till 4.00 AM after that they returned to the police station with accused. Accused was brought by the IO on his own personal motorcycle to police station. Approx 2-3 witnesses' statements were recorded by the IO on the spot. No CCTV cameras were checked in his presence. The neighbour had opened the main gate of the property and after that they entered inside the house for inspection.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
10.Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused persons was recorded on 03.06.2023 without oath undersection 313 CrPC, wherein he stated that he is innocent and has falsely been implicated in the present case. He further stated that he does not want to lead defence evidence.
ARGUMENTS
11.I have heard the Ld. APP for the State and Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 17 of 2612.It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
13.Per contra, the Ld. LAC for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. LAC for the accused person further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused person be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
14.In the instant case, the accused, Sandeep @ Tubu has been charged for the offence under section 457 r/w section 380 of IPC and section 411 of IPC. Section 457 IPC prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment. The essential ingredients to constitute this offence are-
FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 18 of 26(i) The accused should have entered into the property which is in possession of another
(ii) An intention to commit an offence on part of the accused.
(iii) Such property should be any building / tent/ vessel used for human dwelling on place for worship or for custody of property
(iv) Entry into the house should have been affected by the accused in any one of the six ways as defined under Section 454 IPC.
15.Section 380 IPC prescribes punishment for theft in a dwelling house. The theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are as follows-
(i) Intention to take dishonestly
(ii) The property shall be movable property.
(iii) The property shall be taken out from the possession of any person without his consent.
(iv) There should be some moving of the said property to such taking.
(v) The theft should have been committed in a dwelling house or place used for safe custody of property.
16.The essential ingredients to prove the offence under Section 411 IPC are-
(i) The property should be in possession of the accused.
(ii) Such property should be 'stolen property' i.e., it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated.
(iii) The accused had received the same knowing or having reason to believe the same to be stolen property.
17.In order to prove the fact that accused had committed house trespass by night by breaking the lock of the house of the complainant with the intention to commit theft in the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 19 of 26 present case punishable under section 457 r/w section 380 of the IPC, prosecution has to establish beyond doubt that the accused had actually entered the house of the complainant by breaking the lock of his house in the night and committed theft in the house of the complainant. Further, the prosecution is required to prove that the stolen property was recovered from the possession of the accused in order to establish the charge under section 411 of the IPC.
18.Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE:
19.In order to prove the case of the prosecution for committing the house breaking by night with the intention to commit theft and that the stolen property was recovered from the possession of the accused punishable under section 457 r/w 380 of the IPC and section 411 of the IPC respectively, all the ingredients of the said offences have to be proved. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 20 of 26 Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
20.The offence under Section 457 IPC is an aggravated form of the offence described under Section 456 IPC. The intent necessary to prove "criminal trespass" must be present and the court must come to a definite inference as to intention with which entry was affected. The object of Section 380 IPC is to have greater security to property deposited in a house, tent or vessel. Section 411 IPC basically provides punishment to the person who dishonestly receives stolen property. In the case at hand, the star witnesses of the prosecution are PW-1, Sh. Munish Chowdhary, being the complainant, PW-2 Sh. Nitin Kumar and PW-3, Sh. Sachin Kumar, being the eye witnesses in the present matter. The witnesses have given a detailed and lucid account of the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 21 of 26 incident. Their testimonies have remained intact on all the material points. Accused has not been able to impeach the credibility of the aforesaid witnesses or shake the veracity of their statements. Their testimony is completely reliable and trustworthy. The court does not see any reason to disbelieve the testimony of PW-1, PW-2 and PW-3. Their statements are corroborative with each other and the fact that the accused was apprehended at the spot by the eye witnesses to the incident, i.e., PW-2 and PW-3 and that the case property has also been recovered from the possession of the accused Sandeep.
21.PW6, ASI Ashok in his testimony deposed that on 14.02.2022, he had accompanied ASI Omkar to the spot after receiving DD no.12A, where the accused was already apprehended by PW-2 and PW-3 and after sometime, the owner of the house also reached at the spot and accordingly investigation was conducted and after recording of the statement of the complainant and preparation of rukka, the same was handed over to him for the registration of the FIR. There was no improbable fact, which accused could cull out from his testimony. Therefore, his testimony is found to be trustworthy and reliable and is further corroborative by the testimony of PW-5, SI Omkar who is the IO of the instant case. The IO has also seized the case property i.e., taps, 8 bottles of liquor, 8 soaps, 3 bottles of shampoo. There was no improbable fact, which accused could cull out from his FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 22 of 26 testimony. Therefore, his testimony is found to be trustworthy and reliable.
22.The contention of the Ld. LAC for the accused that no other independent witness has joined the investigation and thus the testimony of the prosecution witnesses cannot be relied upon is not acceptable as it is a well settled law which has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh Criminal Appeal No. 502 of 2015 that non- examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testimonies of the witnesses are indeed impeccable and corroborative of each other. The complainant (PW-1) and the two eye-witnesses i.e., PW-2 and PW-3 had no motive to falsely implicate the accused and/or to allow the real culprits to go scot-free. Therefore, in view of aforesaid appreciation of evidence and factual position of the case, PW-1, PW-2 and PW-3 had stood the acid test of cross examination, was believable just like that of a trustworthy and creditworthy witness. Also, in Namdeo vs State of Maharashtra Crl. Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India observed that even the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 23 of 26 convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony. The court does not see any reason for the complainant and to falsely implicate the accused.
23.The Ld. LAC for the accused has also contended that the investigating agencies have not placed on record the photographs and statement of the public witnesses when the recovery was made from the accused Sandeep @ Tubu However, it cannot be a ground to give the benefit of doubt to the accused when the other evidences on record clearly points out towards the guilt of the accused. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
24.It has further been argued that there are material contradictions in the testimonies of the prosecution witnesses and that the benefit of doubt be given to the FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 24 of 26 accused person. However, the same in the opinion of this court is barely material if viewed in the backdrop of the otherwise strong and coherent case of the prosecution. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
25.Therefore, the lapses which have been pointed out by the Ld. LAC for the accused does not materially affect the testimony of the prosecution witnesses and the same leads to the conclusion that the accused was the one who had committed the offence.
CONCLUSION
26.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused persons beyond reasonable doubt. In view of the above discussion, the court is of the considered opinion that the prosecution has successfully proved its case beyond all reasonable doubts against the accused Sandeep @ Tubu that he had committed house breaking by night had committed theft and that stolen articles i.e., 50 taps, 8 soaps, 8 wine bottles were recovered from his possession. Hence, the accused FIR No.76/2022, PS Dwarka South State vs. Sandeep @ Tubu Page 25 of 26 Sandeep @ Tubu is held guilty of the offence punishable under Section 457/380/411 IPC.
Announced in open court on 22.06.2023 in the presence of the accused.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/22.06.2023 Note: The judgment contains 26 pages and each page is signed by the undersigned.
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