Delhi District Court
State vs . Vinod Singh on 27 July, 2023
IN THE COURT OF MS. SONIKA
METROPOLITAN MAGISTRATE-04, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No.786/2013
PS Shakarpur
State Vs. Vinod Singh
CNR No. DLET02-000144-2013
(a) Sr. No. of the case 801/2016
(b) Date of offence 27.08.2013
(c) Complainant Ct. Sher Ali
(d) Accused, parentage and Sh. Vinod Singh, S/o Sh. Jeevan
address Singh, R/o H. No. B-28/4, Gali
No. 5, Arjun Mohalla, Maujpur,
Delhi.
(e) Charges framed Section 457/380/511 IPC & 103
D.P. Act
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted for offence u/s
457/380/511 IPC &
Convicted for offence u/s 103 D.P.
Act
(h) Date of institution 10.12.2013
(i) Date when judgment 17.07.2023
was reserved
(j) Date of judgment 27.07.2023
Digitally
signed by
SONIKA
SONIKA Date:
2023.07.27
16:10:42
+0530
FIR No.786/2013 State Vs. Vinod Singh Page no.1/16
BRIEF FACTS AND REASONS FOR DECISION OF
THE CASE
1. Present charge-sheet has been forwarded by the SHO, PS Shakarpur against the accused to face trial for the offences under Section 457/380/511 IPC & 103 D.P. Act.
2. In nutshell, the case of the prosecution is that on 27.08.2013 at about 04:00 A.M. at Shop No. 75, Jagdama telecom, Gali No. 4, Guru Ram Dass Nagar, Delhi, the accused was trying to open the Shutter of the shop with the help of iron rod and was apprehended by the police officials, who were patrolling. During his search, the accused was found in possession of a mobile phone make Blackberry Black Colour, which was suspected to be stolen one and the accused failed to account the possession of the same. Consequently, present FIR was registered and after completion of investigation, the final report (charge sheet) for the offences under Section 457/380/511 IPC & 103 D.P. Act was forwarded against accused.
3. Cognizance was taken by the Ld. Predecessor v.o.d.
10.12.2013 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 457/380/511 IPC & 103 D.P. Act v.o.d. 17.12.2014 & Digitally signed by FIR No.786/2013 State Vs. Vinod Singh Page no.2/16 SONIKA SONIKA Date:
2023.07.27 16:10:50 +0530 17.09.2018 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) and DD No. 10A dated 26.08.2013 (Ex. C2) without its contents. As a result of which, the examination of the concerned witnesses was dispensed with.
6. Prosecution in support of its case examined as many as 03 witnesses.
7. PW-1 Ct. Santosh Kumar deposed that on 27.08.2013 he was posted as constable at PS Shakarpur and on that day, he along with Ct. Sher Ali was present on patrolling duty w.e.f. 8 p.m. to 8 a.m. on motorcycle in the area of Guru Ram Dass Nagar, Bank Enclave and at about 4 a.m., they reached main market Laxmi Nagar, Gali no.4 Guru Ram Dass Nagar. He further, while identifying the accused, deposed that the accused was trying to remove the shutter of a shop with the help of an iron rod. He further deposed that they immediately reached near him and the accused on seeing them started running from there with the iron rod. He further deposed that they chased him and managed to apprehend him with said iron rod. He further deposed that they took search of the said accused during which mobile phone was recovered from the right pocket of his wearing paint and the accused failed to account for Digitally signed by SONIKA SONIKA Date:
2023.07.27 16:10:56 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.3/16 the possession of the said mobile. He further deposed that they thought that the said mobile phone might be matter of theft. He further deposed that on inquiry accused told his name Vinod Singh. He further deposed that accused was trying to remove/breaking the shutter of shop no.75 Gali no. 4 Jagdamba telephone center. He further deposed that Ct Sher Ali immediately informed the DO in PS about the incident. He further deposed that after some time, HC Pramod came to them at the spot and they handed over the accused to him together with the said iron rod. He further deposed that the IO recorded the statement of Ct. Sher Ali and seized the said iron rod Ex.PW1/A. He further deposed that IO made his endorsement on the statement of Ct. Sher Ali and send him to PS for registration of case. He further deposed that after registration of case, he along with copy of FIR and rukka came to the spot and handed over the same to IO. He further deposed that IO arrested the accused vide arrest memo Ex.PW1/B and also conducted his personal search vide PS Memo Ex.PW1/C. He further deposed that IO interrogated the accused and recorded his disclosure statement Ex.PW1/D. He further deposed that IO recorded his statement in this regard and a separate Kalandra U/s 103 D.P act was prepared against the accused as the accused has failed for account of possession of the above said mobile which the IO had seized vide seizure memo Ex.PW1/E. Thereafter, MHC(M) produced a packet of case property duly sealed with the seal of SP38 which was opened with the permission of the court and the Digitally signed by SONIKA SONIKA Date:2023.07.27 16:11:03 +0530
FIR No.786/2013 State Vs. Vinod Singh Page no.4/16 witness identified the case property, i.e. a mobile phone make Black Berry black colour correctly Ex. P-1. MHC(M) also produced one iron rod together with a wheel pana, and the witness identified both of the articles correctly, the iron rod is Ex. P-2 & wheel pana is Ex. P-3. PW-1 was duly cross-examined by Ld. Counsel for accused.
8. PW-2 HC Sher Ali deposed that on 27.08.2013, he was posted as Constable at PS Shakarpur and on that day, he along with Ct Santosh was present on patrolling duty in the area of Mangal Bazar w.e.f. 8 p.m. to 8 a.m. and at about 4 a.m., when they reached in main market, Laxmi Nagar, they saw that in Gali no.4, a boy was doing something with the shutter of the shop with the help of an iron rod. He further deposed that they immediately took towards the shop, the said boy after seeing them started running from there. He further deposed that they chased the boy and managed to apprehend him at some distance away from there. He further identified the accused and deposed that the accused was having an iron rod in his hand which he took from him. He further deposed that he made enquiry form the accused during which he told his name as Vinod Singh. He further deposed that one wheel pana was also lying at the spot which too was taken in his possession and one mobile phone of Black color make black berry was also recovered from possession of accused. He further deposed that he immediately informed to DO of PS Shakarpur. He further deposed that after some time, HC Parmod Kumar reached at the spot and he handed over the Digitally signed by FIR No.786/2013 State Vs. Vinod Singh Page no.5/16 SONIKA SONIKA Date:
2023.07.27 16:11:16 +0530 accused to the IO HC Parmod Kumar together with recovered iron rod, Wheel pana and the Mobile phone which he took such articles in his possession vide seizure memo Ex.PW1/A. He further deposed that he made his statement to the IO regarding incident Ex.PW2/A. He further deposed that IO prepared rukka and sent it to PS for registration of case FIR through Ct. Santosh. He further deposed that he had shown the spot to the IO who prepared the site plan of same at his instance, Ex.PW2/B. He further deposed that after some time, Ct. Santosh came back at the spot with original rukka and copy of FIR and gave the same to the IO. He further deposed that IO arrested the accused in the present case vide arrest memo already Ex.PW1/B and also conducted his personal search vide memo already Ex.PW1/C. He further deposed that IO interrogated the accused and recorded his disclosure statement already Ex.PW1/D. He further deposed that the accused did not explain about lawful possession of the black berry mobile and as such the said mobile was taken in police possession vide memo already Ex.PW1/F. He further deposed that IO recorded his supplementary statement also. He further deposed that the accused was attempting to commit theft in the shop by breaking the shutter of a shop of a telecom namely Jagdamba Telecom center, Shop no.75 situated in Gali no. 4. He further deposed that the mobile recovered from the possession of accused was taken in police possession U/S102 Cr.P.C for which a kalandra u/s 103 DP Act was prepared separately.Digitally signed by SONIKA
SONIKA Date: 2023.07.27
16:11:27 +0530
FIR No.786/2013 State Vs. Vinod Singh Page no.6/16
Thereafter, MHC(M) produced the above said case property duly sealed with the court seal which was opened with the permission of court and the witness identified the case property correctly. Witness was duly cross-examined on behalf of accused.
9. PW-3 ASI Pramod Kumar deposed that on 27.08.2013, he was posted as HC at PS Shakarpur and on that day, he was present in PS on night emergency duty w.e.f. 08.00 p.m. to 08.00 a.m. and at about 04.15 a.m., he received DD No.10A, dated 27.08.2013 already Ex.C2 regarding catching of a thief and as such he immediately went to the spot at Shop No.75, Jagdamba Telecom Shop, Gali No.4, Guru Ramdas Nagar, Delhi where Ct. Sher Ali No.1925/E alongwith Ct. Santosh were present. He further deposed that Ct. Sher Ali and Ct. Santosh produced before him the accused together with one iron rod and wheel-pana in his possession. He further deposed that they narrated the entire incident and he recorded statement of Ct. Sher Ali already Ex.PW2/A regarding the incident of the present case. He further deposed that he immediately made his endorsement Ex.PW3/A and handed over the rukka to Ct.
Santosh Kumar for registration of case FIR and prior to this, he had taken the Iron rod and wheel-pana vide seizure memo already Ex.PW1/A. He further deposed that he sent rukka to PS for registration of case FIR through Ct. Santosh. He further deposed that he inspected the spot and prepared the site plan already Ex.PW2/B in the presence of Ct. Sher Ali. He further deposed that after sometime, Ct.
Digitally signed by FIR No.786/2013 State Vs. Vinod Singh Page no.7/16 SONIKA SONIKA Date:
2023.07.27 16:11:32 +0530 Santosh came back to him alongwith copy of FIR and original rukka and gave him the same. He further deposed that he arrested the accused in the present case vide arrest memo already Ex.PW1/B and also his personal search was conducted vide PS memo already Ex.PW1/C. He further deposed that during the course of personal search of accused, Rs.45 and one mobile phone make Blackberry were recovered. He further deposed that he interrogated the accused and recorded his disclosure statement Ex.PW1/D. He further deposed that he had seized the said mobile phone into his possession and inquired from him about the ownership of the same but the accused failed to account the possession of the said mobile phone, hence, he seized the said mobile u/Sec.102 Cr.P.C and prepared a kalandra in this regard U/Sec.103 D. P. Act vide DD No.53B, dated 02.12.2013 (photocopy of the said kalandara was Mark A (colly running into 17 pages)). He further deposed that he recorded statement of Ct. Sher Ali and Santosh. He further deposed that accused was got medically examined and then he was sent to lock-up. He further deposed that he deposited the case property with MHC(M) concerned. He further deposed that he had tried to join public persons during the investigation of the presence case but none came forward. He further deposed that on completion of his investigation, he prepared the charge-sheet against accused.
PW-3 was duly cross-examined by Ld. Counsel for accused after filing an application u/s 311 Cr.P.C.
10. Thereafter, PE was closed v.o.d. 28.06.2023.
Digitally FIR No.786/2013 State Vs. Vinod Singh Page no.8/16 signed by SONIKA SONIKA Date:
2023.07.27 16:11:41 +0530 Statement of accused U/Sec. 313 r/w Section 281 Cr.P.C was recorded on 08.07.2023 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.
11. 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.
12. 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.
13. 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.
14. 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 burden of proof in a criminal trial always rests upon the Digitally signed by SONIKA SONIKA Date:
2023.07.27 16:11:47 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.9/16 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 or the case properties were recovered from the possession of accused.
15. In the present case, the accused has been charged for the offences punishable U/Sec. 457/380/511 IPC & Section 103 D. P. Act. 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- trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or Digitally signed by SONIKA SONIKA Date:
FIR No.786/2013 State Vs. Vinod Singh Page no.10/16 2023.07.27 16:11:54 +0530 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.
(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 Digitally signed by SONIKA SONIKA Date: 2023.07.27 16:11:59 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.11/16 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.
16. I have perused the evidence on record led by the prosecution carefully. In the instant case, PW-1 is recovery witness, PW-2 is complainant and PW-3 is the IO of this case. It is an admitted fact that all the 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 Digitally signed by SONIKA SONIKA Date: 2023.07.27 16:12:08 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.12/16 on their testimony, it must be proved to be trustworthy and reliable and must remain unimpeached.
17. 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&2, 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 alleged 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 made no inquiries from the occupants of the shop, whose the shutter was attempted to be opened which casts a serious doubt as Digitally signed to the credibility of the prosecution's case. by SONIKA Date: SONIKA 2023.07.27 16:12:13 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.13/16
18. During the examination of PW-1, the witness had deposed that the accused was trying to remove the shutter of a shop with the help of iron rod and later on the accused was apprehended with the iron rod and the same was seized vide seizure memo (Ex. PW-1/A). However, when the MHC(M) had produced the case property one wheel pana was also taken out. During his complete examination, the witness had not uttered a single word about the wheel pana.
19. It is pertinent to mention that as per the prosecution and the witnesses examined, the seizure memo of iron rod and mobile (Ex. PW1/A) and the site plan (Ex. PW2/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."
20. It has also been alleged by the prosecution that the Digitally signed by SONIKA SONIKA Date:
2023.07.27 16:12:21 +0530FIR No.786/2013 State Vs. Vinod Singh Page no.14/16 accused was found in mobile phone make Blackberry and the accused failed to account for the same and hence committed offence punishable U/Sec. 103 D. P. Act. Section 103 D.P. Act provides as follows:
103. Possession of property of which no satisfactory account can be given.- Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
In the present case, the accused has failed to given any satisfactory explanation for the possession of the mobile phone. Even none of the prosecution witness has been cross-examined on behalf of accused on this aspect. No evidence was led by the accused. Therefore, there is ample reason to believe the same to be stolen property or a property fraudulently obtained. Hence, the accused is liable to be convicted for the offence U/Sec. 103 D. P. Act.
21. 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 Vinod Singh is entitled to the benefit of doubt and to be acquitted of the offences punishable under Sections 457/380/511Digitally IPC. signed by SONIKA SONIKA Date: 2023.07.27 16:12:25 +0530 FIR No.786/2013 State Vs. Vinod Singh Page no.15/16 However, the accused is found guilty for the offence under Section 103 D. P. Act.
22. Hence, the accused Vinod Singh stands convicted for offence u/s 103 D.P. Act and stands acquitted for offence u/s 457/380/511 IPC.
23. Copy of this judgment be given free of cost to accused. Digitally signed by SONIKA SONIKA Date:
2023.07.27 16:12:32 +0530 Pronounced in the open court (SONIKA) on 27th Day of July 2023 MM-04/East/KKD/Delhi It is certified that this judgment contains 16 pages Digitally signed and each page is checked and signed by me. by SONIKA Date: SONIKA 2023.07.27 16:12:40 +0530 (SONIKA) MM-04/East/KKD/Delhi 27.07.2023 FIR No.786/2013 State Vs. Vinod Singh Page no.16/16