Delhi District Court
State vs Harpreet @ Depchand @ Raja on 15 January, 2024
IN THE COURT OF MS. SONIKA
METROPOLITAN MAGISTRATE-04, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. 835/2013
PS Shakarpur
State Vs. Harpreet @ Deepchand @ Raja
CNR No. DLET020006322013
(a) Case No. CR Cases S-316/2013 3040/2016
(b) Date of offence 06.09.2013
(c) Complainant Ct. Jitender Kumar
(d) Accused, parentage and Sh. Harpreet @ Deepchand @
address Raja, S/o Sh. Ramesh, R/o H. No.
A-41, Gali No. 2, Block-12, Rani
Garden, Geeta Colony, Delhi.
(e) Charges framed Section 380/511 IPC & 457/511
IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 24.10.2013
(i) Date when judgment 20.11.2023
was reserved
(j) Date of judgment 15.01.2024
BRIEF FACTS AND REASONS FOR DECISION OF
THE CASE
1. Present charge-sheet has been forwarded by the Digitally signed by SONIKA SONIKA Date:
2024.01.15 14:46:32 +0530 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.1/17 SHO, PS Shakarpur against the accused to face trial for the offences under Section 457/380/511 IPC.
2. In nutshell, the case of the prosecution is that on 06.09.2013 at about 03.15 A.M. at L-20, Thalia Jeweller, Sarafa Bazar Chowk, Laxmi Nagar, Delhi, the accused was trying to open the lock of the Shutter of the shop with the help of iron rod and was apprehended by the police officials, who were patrolling. Consequently, present FIR was registered and after completion of investigation, the final report (charge sheet) for the offences under Section 457/380/511 IPC was forwarded against accused.
3. Cognizance was taken by the Ld. Predecessor v.o.d.
24.10.2013 and after taking cognizance, copy of the charge-sheet alongwith documents were supplied to the accused in compliance of Section 207 Cr.P.C. and the case was listed for arguments on charge.
4. After hearing the parties, charge was served upon accused for the commission of offence under Section 380/511 IPC & 457/511 IPC v.o.d. 21.11.2013 to which he pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution's evidence. It is pertinent to mention that accused admitted the FIR (Ex. C1) without its contents. As a result of which, the examination of the concerned witnesses was dispensed with. Digitally signed by SONIKA SONIKA Date:
2024.01.15 14:46:38 +0530 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.2/17
6. Prosecution in support of its case examined as many as 07 witnesses.
7. PW-1 Ct. Jitender Kumar deposed that on 06.09.2013 he was posted at PS Shakarpur as constable and on that day, he alongwith Ct. Arun was on night patrolling duty from 12.00 midnight to 6.00 am in the area of Laxmi Nagar. He further deposed that at about 3.15am, when they reached near Sharafa Market, Laxmi Nagar near Vijay Chowk, Delhi, they saw that one boy was trying to break the lock of shutter of shop no. L-20, Thalia Jwellers and he had inserted the iron rod inside the lock. He further deposed that on seeing them, he tried to run away and. they apprehended that boy after chasing him. He further deposed that information regarding this was given at the PS Shakarpur. He further deposed that after sometime, IO came at the spot and they handed over that boy namely Harpreet @ Deep Chand who and iron rod to the IO. He further deposed that IO seized the above said iron rod vide seizure memo Ex.PW1/A bearing his signatures at point A (the rod was found to be 45 inch long and 10.5 inch folded and the rod was in Square shape from both the sides). He further deposed that IO thereafter, prepared the rukka and got registered the case. He further deposed that after interrogation, that boy disclosed his age below 18 years, so, juvenile officers SI Rishikesh was called from the PS. He further deposed that he came at the spot and accused was apprehended vide apprehension memo Ex.PW1/C bearing his signatures at point A and personal search memo of Digitally signed by FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.3/17 SONIKA SONIKA Date:
2024.01.15 14:46:45 +0530 accused is Ex.CW1/D bearing his signatures at point A. He further deposed that version of accused Harpreet was also recorded vide memo Ex.PW1/E, bearing his signatures at point A. He further deposed that IO prepared the site plan mark X at his instance and his supplementary statement was recorded by the IO. Thereafter, the MHCM produced one iron rod which is 45 inch long and 10.05 inch folded and the rod is in square shape from both the sides (in unsealed condition) and the witness identified the same as Ex. P1. PW-1 was duly cross-examined by Ld. LAC for accused.
8. PW-2 Ct. Om Prakash deposed that on 25.09.2013, he was posted as Constable at PS Shakarpur and on that day, he alongwith SI B.L. Sharma visited the court concerned at KKD as the accused had come to surrender before the Hon'ble Court. He further deposed that IO of the case with the permission of court had arrested the accused present in the court today vide arrest memo Ex. PW2/A bearing his signature at point A and thereafter the accused was remanded to JC. He further deposed that IO recorded his statement in the regard. Witness was not cross-
examined on behalf of accused despite opportunity.
9. PW-3 SI Rishikesh Meena deposed that on 06.09.2013, he was posted as SI at PS Shakarpur, on that day, he was present in PS and the then DO informed him that at Sarrafa Bazar chowk, shop no.L-20, Walia Jewellars a thief has been caught hold. He further deposed that since, Digitally signed by SONIKA SONIKA Date:
FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.4/17 2024.01.15 14:46:52 +0530 he was looking after the job of Juvenile welfare officer in PS Shakarpur, therefore the DO asked him to go the said place as the alleged person has been claiming himself as juvenile. He further deposed thathe immediately went to the spot and ASI Jaibir IO of the case, Ct Jitender and Ct. Arun were already present there together with Ct. Shekar. He further deposed that they were catching hold the accused. He further deposed that he made inquiries from the accused who told him that he was 17 years of age. He further deposed that therefore, he prepared child version of the JCL already Ex.PW1/E bearing his signatures at point X. He further deposed that thereafter, ASI Jaibir and the constable produced before him an iron rod allegedly recovered from the possession of the JCL which he took into his possession vide already Ex.PW1/A bearing his signature at point X. He further deposed that he apprehended the JCL vide apprehension memo already Ex.PW1/C bearing his signature at point X. He further deposed that after completion of necessary formalities at the spot, the JCL was produced before the concerned JJ Board from where he was sent to Seva Kutir. He further deposed that IO recorded his statement in this regard. PW-3 was duly cross-examined by Ld. LAC for accused.
10. PW-4 SI B.L. Sharma deposed that on 25.09.2013, he was posted as SI at PS Shakarpur and on that day, previous IO of the case was on leave and as such investigation of the case was assigned to him by the then SHO PS Shakarpur. He further deposed that he alongwith Digitally signed by FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.5/17 SONIKA SONIKA Date:
2024.01.15 14:46:58 +0530 Ct. Om Prakash visited Karkardooma Courts where the accused was being produced by jail authorities and as such, he sought permission of the court for arrest the accused in the present case formally vide his application Ex. PW4/A bearing his signature at point A. He further deposed that after permission, he formally arrested the accused in the present case vide arrest memo already Ex. PW2/A bearing his signature at point A1 and thereafter, accused was sent back J/C. He further deposed that he recorded the statement of Ct. Om Prakash. PW-4 was duly cross-examined by Ld. LAC for accused.
11. PW-5 Ct. Arun Kumar deposed that on 06.09.2013, he was posted as Constable at PS Shakarpur and on that day, he alongwith Ct. Jitender was present on night patrolling duty in the area of Laxmi Nagar from 12.00 mid night to 06.00 AM and when they reached near Sarafa Bazar Chowk, Shop No. L-20, Thalia Jwellers, at about 03.00-03.15 AM, they noticed that the accused was trying to break the lock of shutter of Thalia Jewelers with the help of an iron rod and after seeing them, the accused started running from the spot. He further deposed that they also chased the accused and managed to apprehend him after a little bit distance of Thalia Jwellers. He further deposed that on enquiry, the accused told his name as Harpreet. He further deposed that Ct. Jitender immediately informed the PS on which ASI Jai Veer alongwith Ct. Shekhar came at the spot. He further deposed that they alongwith an iron rod handed over the accused to ASI Jai Veer Singh. He Digitally signed by SONIKA FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.6/17 SONIKA Date:
2024.01.15 14:47:03 +0530 further deposed that IO made enquiries from the accused and IO recorded the statement of Ct. Jitender and made his endorsement on the same. He further deposed that IO seized the iron rod vide seizure memo already Ex. PW1/A. He further deposed that IO got the case FIR registered through Ct. Shekhar at PS Shakarpur. He further deposed that during enquiry, accused told himself as minor, therefore, IO prepared version child already Ex. PW1/E. He further deposed that after registration of case FIR, Ct. Shekhar came at the spot alongwith copy of FIR and original rukka and handed over the same to IO. He further deposed that IO arrested the accused in the present case and IO recorded his statement in this regard. He further deposed that thereafter, they alongwith the accused and case property went back to PS. PW-5 was duly cross- examined at length by Ld. LAC for accused.
12. PW-6 Retd. SI Jaivir Singh deposed that on 06.09.2013, he was posted as ASI at PS Shakapur and on that day, he alongwith Ct. Shekhar was present on night emergency duty w.e.f 08:00 pm - 08:00 am and at about 03:30 am, he received DD No.10A regarding apprehension of a thief Ex.PW6/A. He further deposed that thereafter, he alongwith Ct. Shekhar immediately went to the spot at Sarrafa Bazaar Chowk at L-20, a jeweller's shop and on reaching there, Ct. Jitender and Ct. Arun were found present who had caught hold a boy who was having one iron rod in his hand. He further deposed that Ct. Jitender and Arun produced the said boy before him and he took the Digitally FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.7/17 signed by SONIKA SONIKA Date:
2024.01.15 14:47:09 +0530 said iron rod in his possession. He further deposed that he recorded statement of Ct. Jitender already Ex. PW1/B bearing his attesting signature at point X, made his endorsement on the statement of Ct. Jitender Ex. PW6/A1 bearing his signature at point X, he sent rukka to PS for registration of FIR through Ct. Shekhar. He further deposed that on inquiry, the accused told his age 17 years, therefore, he called SI Rishikesh from JWO. He further deposed that he inspected the spot and prepared the site plan of the same Ex. PW6/B bearing his signature at point X. He further deposed that at about 06:00 a.m., Ct. Shekhar brought rukka and copy of FIR and gave him the same. He further deposed that he had seized the aforesaid iron rod vide memo already Ex.PW1/A bearing his signature at point X and at about 06:30 a.m., SI Rishikesh JWO also came at the spot. He further deposed that SI Rishikesh made enquiries from the accused, recorded his version and thereafter apprehended him vide apprehension memo already Ex. PW1/C and his PS memo already Ex. PW1/D all bear his signature at point X respectively. He further deposed that the version of the accused recorded by SI Rishikesh also available on record Ex. PW1/E bearing his signature at point X. He further deposed that he recorded supplementary statement of Ct. Jitender and statement of Ct. Arun. He further deposed that thereafter, he alongwith SI Rishikesh and Ct. Shekhar produced the accused before the concerned JJB from where he was sent to observation home. He further deposed that he recorded statements of Digitally signed by SONIKA SONIKA Date:
FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.8/17 2024.01.15 14:47:15 +0530 Ct. Shekhar and SI Rishikesh. He further deposed that he made enquiries from the mother of accused but she did not produce any document with regard to the date of birth of her son and she told that accused was apprehended in a case registered vide FIR No. 124/2010 PS Geeta Colony. He further deposed that the concerned JJB summoned the relevant record of the accused from PS Geeta Colony as per which the accused had already attained majority. He further deposed that the Ld. JJB directed to produce the accused before the concerned Court and therefore on 25.09.2013, the accused was produced before the concerned Court but he was on leave on that day. He further deposed that on 25.09.2013, SI B.L. Sharma had appeared in the Court and conducted the further investigation into the present matter. He further deposed that he joined his duties after 2-3 days and carried out the investigation of the case further. He further deposed that during investigation, he completed the investigation of the case and thereafter prepared a chargesheet against him. He further deposed that he filed the chargesheet before the concerned for trial of the accused. PW-6 was duly cross-
examined by Ld. LAC for accused.
13. PW-7 HC Shekhar deposed that on 06.09.2013, he was posted as Constable at PS Shakarpur and on that day, he was present in PS on night emergency duty alongwith ASI Jaivir Singh and at about 03.30 am, IO received DD No. 10A, pursuant to which, he alongwith IO visited Sarrafa Market at Laxmi Nagar, Delhi at Thalia Jewellers Digitally signed by FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.9/17 SONIKA SONIKA Date:
2024.01.15 14:47:20 +0530 L-20. He further deposed that Ct. Jitender & Ct. Arun were already present there who had caught hold the accused and on inquiry, the name of the accused came to know as Harpreet. He further deposed that the IO recorded the statement of Ct. Jitender and endorsed the same. He further deposed that IO handed over him the rukka with the direction to get the case FIR registered. He further deposed that he took rukka to PS and got the case registered, brought rukka and copy of FIR to the spot and handed over the documents to the IO/ASI Jaivir. He further deposed that after sometime, SI Rishikesh came at the spot. He further deposed that since the accused was telling his age 17 yrs., therefore the IO prepared the age memo of the accused. He further deposed that one iron rod had been recovered from the possession of accused which was taken in police possession by ASI Jaivir vide seizure memo already Ex.PW1/A bearing his signature at point B. He further deposed that IO apprehended the accused and prepared apprehension memo already Ex.PW1/C bearing his signature at point B. He further deposed that IO recorded child version of the accused already Ex. PW1/E bearing his signature at point B, conducted personal search of the accused vide PS Memo already Ex.PW1/D bearing his signature at point B. He further deposed that the accused was produced before concerned JJ Board. He further deposed that IO recorded his statement in this regard. PW-7 was duly cross-examined at length by Ld. LAC for accused. Digitally signed by SONIKA SONIKA Date:
2024.01.15 14:47:26 +0530 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.10/17
14. Thereafter, PE was closed v.o.d. 28.08.2023.
Statement of accused U/Sec. 313 r/w Section 281 Cr.P.C was recorded on 10.10.2023 wherein accused pleaded false implication and denied all the incriminating evidence put to him. Since, the accused did not opt to lead defence evidence, the matter was listed for final arguments.
15. It was argued by the Ld. APP for the State that the prosecution witnesses have successfully proved the factum of commission of offence by the accused, beyond reasonable doubt. He further stated that all the witnesses have supported the case of the prosecution and hence, the accused is liable to be convicted and punished as per law.
16. On the other hand, it was argued by Ld. Counsel for accused, the accused was falsely implicated in the case as there are several discrepancies and material contradictions in the deposition of the prosecution witnesses which create grave suspicion about the prosecution's case. He prayed that the accused deserve to be acquitted in this case.
17. I have heard the arguments addressed by Ld. APP for the State and Ld. Counsel for the accused and have carefully perused the material available on record.
18. It is a well settled legal principle that the prosecution has to prove its case beyond all reasonable doubts and has to stand upon its own legs. The prosecution cannot draw any strength from the case of the accused howsoever weak it may be. It is also a well settled principle of law that the Digitally signed by SONIKA SONIKA Date:
2024.01.15 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.11/17 14:47:32 +0530 burden of proof in a criminal trial always rests upon the prosecution and the same never shifts on the accused. Now the question before the court is whether the prosecution has been able to prove beyond reasonable doubt that the accused was trying to open the shutter of a shop with the help of iron rod or not.
19. In the present case, the accused has been charged for the offences punishable U/Sec. 380/511 IPC and 457/511 IPC. To bring home the guilt of accused U/Sec. 457/511 IPC, the prosecution had to prove that the accused attempted to commit lurking house trespass or house- breaking by night with an intention to commit an offence punishable with imprisonment or with an intention to commit offence of theft.
The offence of house trespass and lurking house trespass is defined under section 442 & 443 IPC which reads as follows:
442. House trespass.-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation.-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass.-Whoever commits house-
Digitally trespass having taken precautions to conceal such signed by SONIKA SONIKA Date:
2024.01.15 14:47:37 +0530 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.12/17 house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
The word 'Criminal trespass' is defined under section 441 IPC which reads as follows:
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"
The offence of housebreaking is defined under section 445 IPC which runs as follows:
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)- If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Digitally (Secondly)- If he enters or quits through any passage signed by SONIKA SONIKA Date:
2024.01.15 14:47:42 +0530 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.13/17 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)- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house- trespass by any means by which that passage was not intended by the occupier of the house to be opened.
(Fourthly)- If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
(Fifthly)- If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
(Sixthly)- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
Explanation.- Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.
20. I have perused the evidence on record led by the prosecution carefully. In the instant case, PW-1 is complainant, PW-2 and PW-7 are formal/police witness, PW-3 is JWO, PW-5 is the recovery witness and PW-4 and 6 are the IO of this case. It is an admitted fact that all the Digitally signed by SONIKA FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.14/17 SONIKA Date:
2024.01.15 14:47:48 +0530 prosecution witnesses are police officials and not even a single independent witness has been examined by the prosecution. It is also a matter of prudence that before reliance is placed on their testimony, it must be proved to be trustworthy and reliable and must remain unimpeached.
21. In the present case, no eye-witness has been cited or examined by the prosecution who had seen the accused while attempting to open the shutter of the shop. No CCTV footage has been placed on record to establish the fact that accused had attempted to enter the shop. No fingerprints of the accused were taken from the spot by the IO by which the presence of the accused could have been established at the place of incident and at the time of alleged offence. As per PW-1 & 5, the accused was trying to remove the shutter of the shop with the help of iron rod. However, interestingly, the lock of the shutter was not seized by IO.
Moreover, the shutter or the lock was not photographed. PW-3 during his cross-examination stated that he did not notice any sign of removing or unrooting the shutter and the lock of the shop. Had the accused been present at the place of incident and apprehended at the spot, the police would have taken his photographs alongwith the shutter allegedly tried to be opened by the accused, to give strength to their case and to prove the case against the accused. However, no such photographs either of the shutter or lock or the offender is made part of the charge- sheet by the IO. No plausible explanation was put forth by any of the PWs for such inadvertence. Admittedly, the IO Digitally signed by SONIKA FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.15/17 SONIKA Date:
2024.01.15 14:47:56 +0530 made no inquiries from the occupants of the shop, whose shutter was attempted to be opened. During his cross- examination, PW-6 deposed that he had not even told the owner of Thalia Jewelers about the attempt to break the locks of his shop. All these facts cast a serious doubt as to the credibility of the prosecution's case.
22. It is pertinent to mention that as per the prosecution and the witnesses examined, the seizure memo of iron rod (Ex. PW1/A) and the site plan (Ex. PW6/B) were prepared before the registration of FIR. But strangely all these documents bear the FIR number of the present case. This is not possible unless either FIR number has been inserted later on upon these documents after registration of FIR or else these documents have been prepared after registration of FIR. In both conditions, this fact throws doubt on the prosecution version and materially affects its credibility. In Mohd. Hasim Vs. State, 1999 VI AD (DELHI) 569, it has been held by Hon'ble Delhi High Court as follows:
"Documents prepared before registering the FIR bears FIR Number, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording the FIR, and was held that in both case, prosecution case would collapse."
23. In the light of aforesaid facts and circumstances, I hold that the prosecution failed to prove the essential ingredients of the offences under Sections 457/380/511 IPC against the accused. Consequently, accused Harpreet @ Digitally signed by SONIKA SONIKA Date:
FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.16/17 2024.01.15 14:48:04 +0530 Deepchand @ Raja is entitled to the benefit of doubt and to be acquitted of the offences punishable under Sections 457/380/511 IPC. Hence, the accused Harpreet @ Deepchand @ Raja stands acquitted for offence u/s 457/380/511 IPC. Digitally signed by SONIKA SONIKA Date:
2024.01.15 14:48:12 +0530 Pronounced in the open court (SONIKA) on 15th Day of January 2024 MM-04/East/KKD/Delhi It is certified that this judgment contains 17 pages and each page is checked and signed by me.
Digitally signed by SONIKA SONIKA Date:
2024.01.15 14:48:17 +0530 (SONIKA) MM-04/East/KKD/Delhi 15.01.2024 FIR No.786/2013 State Vs. Harpreet @ Deepchand @ Raja Page no.17/17