Delhi District Court
State vs Padmesh Kumar @ Santosh Yadav on 24 September, 2024
Page 1 of 12
IN THE COURT OF ASHISH KUMAR MEENA
JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.: 193/2016
PS: FATEHPUR BERI
U/S: 380/457/511 IPC
CR. CASE NO. 2031537/2016
STATE
VS.
PADMESH KUMAR @ SANTOSH YADAV
S/O RAJ BAHADUR @ RAJJAN
R/O VIL. CHAURA, PO PIDHI
DISTRICT AMETHI, U.P ...... ACCUSED
1. FIR No. : 193/2016
2. The date of offence : 23.03.2016
3. The name of the complainant : Kawal Singh
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 13.09.2024
6. The date of order : 24.09.2024
7. The final order : CONVICTED
JUDGMENT:
1. Briefly stated, it is in allegation that the accused was caught red handed by the complainant while committing theft by house break at night. Thus, the accused is facing present trial on allegations that on 23.03.2016, at about 12:30 AM, in Farm No. F- 5, Radhe Mohan Drive, Jaunapur, New Delhi, the accused committed house breaking by night by entering into the said house by breaking the window grill of kitchen with iron plas of the complainant and attempted to commit theft in said house used as human dwelling house, however, the accused was caught red ASHISH Digitally signed by ASHISH FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR KUMAR MEENA Date: 2024.09.24 MEENA 15:35:10 +05'30' Page 2 of 12 handed by the complainant and his father. Thus, the accused has charge-sheeted u/s 380/457/511 IPC.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. Copy of charge- sheet was supplied to him in compliance of Section 207 Cr.P.C. Accordingly, the charge u/s 380/457/511 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined six witnesses. The complainant/PW-1 Kawal Singh has deposed that on 23.03.2016 at about 12:30 AM, he came to his house after meeting with his friends. He went to his room and noticed that light of bathroom is switched on and one person is lurking around. The complainant shouted loudly as he saw the accused with iron plas (Cutter) in his hand. The accused put the said cutter pointing towards his stomach and threatened not to shout. In the meantime, his father came to his room and accused tried to flee away, but they both caught him in the kitchen. The accused revealed that one more person was with him but he ran away. The accused also disclosed that he entered into the house by breaking window (Jali) of the kitchen. Thereafter, his parents made a call at 100 number. PCR came to his house and recorded his statement vide Ex.PW1/A. They handed over the accused to police, who disclosed his name as Santosh from Lucknow. Police arrested the accused in his presence vide Ex.PW1/B. IO prepared site plan vide Ex.PW1/D and seized the plas (cutter) vide Ex.PW1/E after making rough sketch of plas (cutter) vide Ex.PW1/F. During examination, the witness has correctly Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR Date:
2024.09.24 MEENA 15:35:20 +05'30' Page 3 of 12 identified the accused and case property (Ex. P1) i.e one Plas/Cutter. The witness was duly cross-examined by Ld. LAC for the accused.
4. PW-2 Tarhlok Singh Punyani has deposed that the on 23.03.2016 at about 12:30 AM, he heard son's shouting that one thief has entered his room. He went to his room and saw one person was running away. Thereafter, they caught hold of him in the kitchen and made a call to PCR at 100 Number. Thereafter, police officials reached at the spot and they handed over the accused with case property i.e. Plas/Cutter. IO recorded his statement. During examination in chief, witness also correctly identified the accused.
5. PW-3 HC Devender has deposed that he was posted as DO in PS Fatehpur Beri. He received rukka through Ct. Bhupender sent by SI Surinder. On the basis of said rukka, he registered the present FIR and handed over the same to Ct. Bhupender. PW-3 has proved copy of FIR (Ex.PW3/A), Endorsement made on rukka (Ex.PW3/B), Certificate u/s 65B IEA (Ex.PW3/C) and DD No. 4A dated 23.03.2016 (Ex.PW3/D).
6. PW-4 Ct. Bhupender has deposed that he alongwith SI Surender Singh reached at the spot. The complainant handed over the accused to them. The IO prepared rukka and handed over to him for registration of FIR. He came back to spot after registration of FIR. He prepared site plan and arrested the accused vide Ex. PW1/B. The case property was sealed with seal of "SS" and the same was seized by the IO vide Ex. PW1/E after preparation of sketch plan of Plas/Cutter vide Ex. PW1/F. ASHISH Digitally by ASHISH signed State Vs. Padmesh Kumar @ Santosh Yadav KUMAR Date:
KUMAR MEENA FIR No:193/2016 PS: Fatehpur Beri 2024.09.24 MEENA 15:35:28 +05'30' Page 4 of 12
7. PW-5 IO/SI Surender Singh has deposed that the present matter was marked to him for investigation. Thus, he went to the spot alongwith Ct. Bhupendra and met the complainant Kamal Narayan and his Father Trilok. They handed over the accused to him alongwith iron cutter/plas. He recorded the statement of complainant vide Ex.PW1/A. He prepared rukka and handed over the same to Ct. Bhupendra. After registration of FIR, he prepared the site plan vide Ex.PW1/D. He prepared sketch of plas vide Ex.PW1/F and the same was also seized vide Ex.PW1/E. He arrested the accused vide Ex.PW1/D and recorded his disclosure statement vide Ex.PW5/A. After inspecting the spot, he alongwith Ct. Bhupendra and complainant brought the accused to the police station. He recorded supplementary statement of complainant and other witnesses. Thereafter, he produced the accused before concerned court and obtained the order of three days PC Remand for search of co-accused. However, co-accused namely Anup or Sanjay could not be found. Thereafter, he recorded the supplementary disclosure statement of accused vide Ex.PW5/B. On completion of investigation, he filed the charge-sheet.
8. PW-6 ASI Kaushal Kumar has also deposed on the same lines of SI Surendra Singh (PW-5). He has deposed that accused gave his supplementary disclosure statement that one person namely Sanjay Yadav was also involved in commission of present offence. However, the accused could not be traced out.
9. On completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and recovery of case ASHISH Digitally signed FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav by ASHISH KUMAR KUMAR MEENA Date: 2024.09.24 MEENA 15:35:35 +05'30' Page 5 of 12 property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
10. Final arguments heard. Case file perused.
11. Short point for determination before this court is as under:
'' Whether that on 23.03.2016, at about 12:30 AM, in Farm No. F-5, Radhe Mohan Drive, Jaunapur, New Delhi, the accused committed house breaking by night by entering into the said house by breaking the window grill of kitchen with iron plas of the complainant and attempted to commit theft in said house used as human dwelling house. Thus, the accused has committed an offence punishable u/s 380/457/511 IPC.
12. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
13. Ld. LAC for accused submitted that is innocent and falsely implicated in the present matter. Ld. LAC submitted that the Prosecution has failed to prove recovery made against the accused beyond reasonable doubt. Ld. LAC for the accused has pointed out the material contradiction made during the examination of prosecution witnesses. It is submitted that there are several contradictions in the statement of witnesses pertaining to arresting ASHISH Digitally by ASHISH signed FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR Date:
KUMAR MEENA 2024.09.24 MEENA 15:35:42 +05'30' Page 6 of 12 of accused, recording the statement of complainant and variation in time of investigation. It is submitted that prosecution has failed prove its case by not including any public witness in this case. Furthermore, Ld. LAC for the accused submitted that be accused is liable to the acquitted in the present case.
14. Heard the arguments addressed by both parties at length and perused the available record.
15. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377, wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious ASHISH Digitally by ASHISH signed State Vs. Padmesh Kumar @ Santosh Yadav KUMAR Date:
KUMAR MEENA FIR No:193/2016 PS: Fatehpur Beri 2024.09.24 MEENA 15:35:49 +05'30' Page 7 of 12 the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
16. It is the case of prosecution that accused entered into the house of the complainant at night by cutting net of window of the kitchen and tried to commit theft in the house of the complainant. However, he was caught red handed by the complainant and his father alongwith one cutter (plas).
17. In view of this court, the prosecution has successfully proved his case by examining two-star witnesses i.e. PW-1 Kawal Sigh and PW-2 Trilok Singh. As both witnesses have stated that they caught hold of the accused in the kitchen of the said premises. The both witnesses have also deposed that the accused entered into the said house by cutting the window net/jali with iron cutter/plas. The witnesses have also deposed that the accused was found in the possession of the said iron cutter/plas. It is pertinent to mention that both the witnesses have correctly identified the accused during their examination. Furthermore, there is no variation, manipulation and contradiction in the statement of both the witnesses. Though, both witnesses have been duly cross- examined, but there is no contradiction/variation in their statement. Thus, both the witnesses are proved to be sterling quality as their statement are corroborated by the documentary evidence and testimonies of IO SI Surender Singh and accompanied police officials.
18. During the course of final arguments, Ld. LAC has pleaded that there are several contradictions pertaining to recording the statement of complainant as well as the investigation. It is Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR Date:
2024.09.24 MEENA 15:35:57 +05'30' Page 8 of 12 submitted that the IO has stated that he took photographs of the spot, but the same are not placed in pursuance of Section 65B of Indian Evidence Act. It is further submitted that the IO has not examined other witnesses including other family member of the complainant and guard of the property. It is submitted that there is a contradiction with respect to preparation of documents as PW-5 has submitted that the documents were prepared at the spot as well as police stations whereas PW-1 and PW-2 have deposed that they never visited the police station. Further, it is submitted that the accused was never arrested from the spot and he has been falsely implicated by the complainant and by the eye-witnesses.
19. It is correct that there are several contradictions between the statement of complainant and IO of this case pertaining timing of recording of their statements, however, the contradictions are not material contradiction. In view of this court, the prosecution was required to prove that the accused entered into the said premises in the night after cutting the jali/net of the window by using iron cutter/plas. The prosecution was also required to prove that the accused tried to commit theft, however, he was caught red handed by the complainant and his father.
20. As discussed above, PW-1 Kawal Singh and PW-2 Trilok Singh are proved to witness of sterling quality as there is no material contradiction or variation in their statement. Both the witnesses have successfully proved that the accused entered into the said premises through kitchen window. The said fact is also corroborated by the fact that the iron plas/cutter has been recovered from the possession of the accused. DD No. 4A dt. 23.03.2016 also proves that one of the family members of the Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR 2024.09.24 Date:
MEENA 15:36:04 +05'30' Page 9 of 12 complainant made a PCR call regarding attempt to commit theft and the fact that they have apprehended the accused. Thus, it is proved that the accused was caught red handed at the spot. Hence, the possibility of framing him in a false case by the police officials is ruled out. Furthermore, it is a settled law that only because of fact that because of non-production of several number of witnesses, the statement of eye witnesses should be thrown away if otherwise that statement seems reliable and trustworthy. Further, there is no material contradiction, variation in the cross- examination of both eye witnesses. This Court has no reason to disbelieve the testimonies of the said witnesses. This Court also places its reliance on Mahesh and another Vs. State of Madhya Pradesh 2011(X) AD (SC) 225, where Hon'ble Supreme Court of India has held as under: -
"Since eye witnesses were available and examined, there was no necessity of examining other witness, in as much as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are ASHISH Digitally signed by ASHISH convicted." KUMAR KUMAR MEENA Date: 2024.09.24 MEENA 15:36:11 +05'30' FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav Page 10 of 12
21. The accused is only seeking their acquittal on the basis of minor contradictions; however, the witnesses are of sterling quality. Their version has remained unrebutted and duly proved.
In this regard Hon'ble Supreme Court of India in case titled as Rai Sandeep @ Deepu v. State, (2012) 8 SCC 21 has held as under
"22. In our considered opinion, " the sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as ASHISH Digitally signed by ASHISH FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR KUMAR MEENA Date: 2024.09.24 MEENA 15:36:19 +05'30' Page 11 of 12 the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be started that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that as such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which they guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
22. In view of the aforesaid discussion, from the unrebutted testimony of PW-1& PW-2 (complainant and his father) coupled with the seizure memo and site plan, as tendered in evidence by PW-4 & PW-5, and testimony of other prosecution witnesses, the prosecution has established beyond reasonable doubt that on ASHISH Digitally by ASHISH signed FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav KUMAR KUMAR Date:
MEENA 2024.09.24 MEENA 15:36:26 +05'30' Page 12 of 12
23.03.2016, at about 12:30 AM, in Farm No. F-5, Radhe Mohan Drive, Jaunapur, New Delhi, the accused committed house breaking by night by entering into the said house by breaking the window grill of kitchen with iron plas of the complainant and attempted to commit theft in said house used as human dwelling house. Thus, the accused has committed an offence punishable u/s 380/457/511 IPC. Thus, in the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 380/457/511 IPC against the accused Padmesh Kumar @ Santosh Yadav beyond reasonable doubts.
23. Hence, the accused Padmesh Kumar @ Santosh Yadav is convicted for offences u/s 380/457/511 IPC.
24. Let the copy of judgment be given free of cost to the convict.
25. Let the convict be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 24.09.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO TWELVE PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by ASHISH ASHISH KUMAR MEENA
KUMAR MEENA Date: 2024.09.24 15:36:34
+05'30'
(ASHISH KUMAR MEENA)
JMFC-01/SAKET COURT(SOUTH),
NEW DELHI, 24.09.2024
FIR No:193/2016 PS: Fatehpur Beri State Vs. Padmesh Kumar @ Santosh Yadav