Delhi District Court
State vs Mannu@Manish on 23 December, 2024
IN THE COURT OF MS. PAYAL SINGAL,
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL
TIS HAZARI COURTS: DELHI
STATE vs. Mannu @ Manish
FIR NO. : 247/2024
U/S : 380/457/511 IPC
PS : Burari
Cr. Case No. : 7321/2024
JUDGMENT
1. CNR No. : DLCT02-014435-2024 2. Date of Commission of the offence : 16.04.2024 3. The name of the complainant : Sh. Omee, S/o Sh. Satish Chand 4. Name & parentage of accused : Mannu @ Manish, S/o Sh. Devi Singh 5. Offence complained off : 380/457/511 IPC 6. Plea of the accused person : Pleaded not guilty. 7. Final order : ACQUITTAL Date of Institution : 30.04.2024 Date of Reservation : 23.12.2024 Date of Judgment : 23.12.2024 BRIEF FACTS:
1. Vide this judgment, I shall decide the fate of the abovementioned FIR which was registered on 16.04.2024 on the complaint of Sh. Ommi qua the commission of lurking house trespass or house breaking by committing criminal trespass into his house i.e. Khasra No.15/23, Gali No.03, D Block, Harit Vihar, Burari, on 16.04.2024.
FIR No. 247/2024 State vs. Mannu @ Manish Page no. 1/11 Digitally signed
by PAYAL
PAYAL SINGAL
SINGAL Date:
2024.12.23
17:30:20 +0530
2. The brief case of the prosecution is that on 16.04.2024 at about 2.30 am at Kh. No. 15/23, Gali no. 03, D- Block, Harit Vihar, Burari, Delhi, within the jurisdiction of PS Burari the accused committed lurking house trespass or house breaking by committing criminal trespass into the house belonging to complainant namely Ommi for the purpose of attempting to commit theft and he was apprehended on the spot and thereby committed an offence punishable u/s 457/380/511 IPC.
3. After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 457/380/511 Indian Penal Code (hereinafter referred to as IPC) against the accused Mannu @ Manish on 05.06.2024 to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.
PROSECUTION EVIDENCE
4. Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the accused had admitted the copy of FIR No. 247/2024 (Ex. AD1); endorsement made on rukka (Ex. AD2); Certificate U/s 65 B Indian Evidence Act (Ex. AD3) and DD No. 12 A dated 16.04.2024 vide which PCR qua the present incident was received (Ex. AD4) without admitting the contents of the said documents. Thus, the said witnesses were not summoned.
5. Accordingly, to bring home the guilt of the accused, the prosecution examined the remaining 03 witnesses in support of its case i.e. PW-1 Sh. Ommi i.e. the complainant, PW-2 ASI Har Swaroop and PW-3 HC Rahul Hudda. Now, the testimonies of all these witnesses shall be discussed in detail one by one.
FIR No. 247/2024 State vs. Mannu @ Manish Page no. 2/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:30:30 +0530
6. PW-1 Ommi deposed that on 16.04.2024, he reached his home i.e. Gali No.03, Harit Vihar, Burari where he lives with his family after driving Taxi. Thereafter, he stated that he was sleeping in his room which was situated at 03rd floor when at about 2.30 am, he heard some noises, due to which he woke up and saw that one person had entered in his room and after seeing him, the said person tried to escape from the spot after climbing the terrace and jumped into the gali. Then, PW-1 stated that he shouted "chor chor" and ran behind the said person and apprehended him with the help of a neighbour whereafter, he dialed the 112 number and after some time, police officials came at the spot. Thereafter, the witness stated that he produced the accused before the police officials who recorded his statement, Ex. PWI/A and arrested the accused vide arrest memo which is Ex. PW1/B. The said witness correctly identified the accused.
7. PW-2 ASI Har Swaroop deposed that on 16.04.2024, he was posted as ASI in the PS Burari and on that day, a PCR call was received that complainant alongwith public persons had caught one thief. Then, PW-2 deposed that he alongwith HC Rahul reached at the spot at around 2.30 am where they met with complainant namely Ommi and accused person namely Mannu @ Manish. The witness further stated that then, the complainant narrated the entire incident to him and also stated that he had caught the accused with the help of public persons. PW-2 further stated that then, he recorded the statement of the complainant and prepared the tehrir and sent HC Rahul to the PS for the purpose of registration of FIR and after some time, HC Rahul came back to the spot alongwith original tehrir and copy of FIR and handed over the documents to him. Then, PW-2 deposed that he prepared the site plan at the instance of the complainant Ex. PW2/A, he arrested the accused Mannu @ Manish vide arrest memo Ex PW1/B, he also made the personal search memo of the accused vide personal search memo Ex. PW2/B and he also recorded the disclosure FIR No. 247/2024 State vs. Mannu @ Manish Page no. 3/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:30:39 +0530 statement of the accused Ex. PW2/C. then, PW-2 stated that they brought the accused person to the PS where he recorded the statement of witnesses u/s 161 Cr.P.C and after completion of all the formalities, he prepared the chargesheet and filed it in court. The said witness correctly identified the accused.
8. PW-3 HC Rahul deposed that on 16.04.2024 I was posted as a HC in the PS Burari and on that day, a PCR call was received by IO and thereafter, he along with IO/ASI Har Swaroop reached at the spot i.e. D Block, Harit Vihar where they met with the complainant namely Ommi and accused person namely Mannu @ Manish. He stated that there, the complainant narrated the whole incident to them and also handed over the accused Mannu @ Manish to them. Then, the witness stated that IO recorded the statement of the complainant and prepared the tehrir and handed over the same to him for registration of FIR whereafter, he left for the PS and after registration of FIR, he came back to the spot alongwith original tehrir and copy of FIR and handed over the said documents to IO/ASI Harswaroop. Thereafter, he stated that IO prepared the site plan at the instance of the complainant Ex. PW2/A, IO arrested the accused Mannu @ Manish vide arrest memo Ex PWI/B, IO also made the personal search memo of the accused vide personal search memo Ex. PW2/B and IO also recorded the disclosure statement of the accused Ex. PW2/C. PW-3 then stated that thereafter, they brought the accused person to the PS after his medical examination and he was put behind bars and IO recorded his statement. The said witness correctly identified the accused person in the court.
9. All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.
STATEMENT OF THE ACCUSED:
10.After recording the testimony of all the witnesses, the PE was closed and FIR No. 247/2024 State vs. Mannu @ Manish Page no. 4/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:30:48 +0530 thereafter, the statement of the accused person was recorded u/s 313 Cr.P.C. r/w S.281 Cr.P.C on 06.12.2024. In the said statement, the accused person denied all the allegations levelled against him and stated that he had been falsely implicated in the present case. The accused person further stated that he did not want to lead any DE and accordingly, the matter came up for final arguments.
FINAL ARGUMENTS:
11.Arguments on behalf of the accused were advanced by ld. LAC Sh. Satish Kumar and by Sh. Rohit Lohat, Ld. APP on behalf of the State.
12.It was argued by Ld. APP for the state that the state had successfully proved its case beyond all reasonable doubts that the accused person had entered the house of the complainant illegally at night and tried to commit theft and was guilty of the offences u/s 457/380/511 IPC. It was argued that the testimony of PW-1, who had apprehended the accused while in the said act and had also correctly identified the accused in court was sufficient to prove the allegations against the accused as no material contradictions had been brought in his testimony. It was further argued that the testimony of PW-1 was duly corroborated by the two police witnesses and accordingly, it was argued that the accused be convicted for offences u/s 457/380/511 IPC.
13.Per contra, it was argued by the Ld. LAC for the accused person that the accused person was completely innocent and had been falsely implicated in the case. It was further argued that as per the testimony of PW-1, the accused was apprehended with the help of his neighbour/ public persons but the said person/s had not been made a witness in the present case. It was further argued that there is no explanation as to why the statements of the said public person/s, if any, were not recorded. Accordingly, it was argued that the accused had been falsely implicated in the present case and he was bound to be acquitted of all FIR No. 247/2024 State vs. Mannu @ Manish Page no. 5/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:30:56 +0530 charges levelled against him.
14.Arguments from both the sides have been heard and the record has been carefully perused.
REASONS FOR JUDGMENT:
15.It is settled proposition of criminal jurisprudence that it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution case appears to be improbable or lacks credibility, the benefit of any and all doubt/s, necessarily has to go to the accused person/s.
16.Now, before proceeding further, it is relevant to note the bare provisions of law which are to govern the reasoning behind the decision of the present case.
"380. Theft in dwelling house, etc.--Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"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".
"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 vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
"445. House-breaking.--A person is said to commit "house-breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or having committed an Digitally signed FIR No. 247/2024 State vs. Mannu @ Manish Page no. 6/11 by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:31:08 +0530 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 made by himself, or by any abettor of the housetrespass, 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 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. "457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house-
trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years."
"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1 [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2 [imprisonment of any description provided for the FIR No. 247/2024 State vs. Mannu @ Manish Page no. 7/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:31:59 +0530 offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
17.In the case at hand, it is the case of the prosecution that the accused entered the house of the complainant at night with the intention to conceal the said entrance or broke open the locks of the house of the complainant and entered his house at night with the purpose of committing theft but he was stopped from committing the said theft by the complainant and while he was running away from the spot, he was apprehended by the complainant.
18.The star and the only independent witness as relied upon by the prosecution is PW-1 Sh. Ommi i.e. the complainant in whose house, the accused allegedly committed the present offence. Now, the said witness stated that on hearing voices at about 2.30 am, he woke up and saw one person in his room and after seeing him awake, the said person jumped on the terrace and thereafter, escaped his house through the gali but he apprehended him on the spot with the help of his neighbour. What assumes relevance to note here is that there is no mention of any other public witness in the list of witnesses. Had the complainant caught the accused with the help of a neighbour or any other public person, it becomes highly unlikely why the said person, who would have been a natural witness to the crime, was not examined by the prosecution. It also assumes importance to note that the complainant has mentioned that he resided at the said house with his family and also shouted "chor chor"on seeing the accused in his room but again, there is no explanation as to where the entire family members of the complainant were when all this commotion was happening or why none of the family members heard anything, either the shouts of the complainant or any other sounds of breaking of locks, etc. or why Digitally FIR No. 247/2024 State vs. Mannu @ Manish Page no. 8/11 signed by PAYAL PAYAL SINGAL Date:
SINGAL 2024.12.23 17:32:15 +0530 none of them came to the rescue of the complainant.
19.Another fact which becomes relevant here is that PW-1 admitted during his cross-examination that nothing was recovered from the possession of the accused while at the same time, he also stated that in the present incident, his mobile phone as well as some cash had been stolen. It is not the case of the prosecution anywhere that the accused committed the said offence with the help of any other co-associate, in which case, it comes into question as to where the said cash and mobile phone of the complainant went when the same was not recovered from the possession of the accused who was allegedly caught at the spot.
20.The only other witnesses examined by the prosecution are the IO and HC Rahul who accompanied the IO during the entire investigation. However, the testimony of both the witnesses is completely silent as to why no public persons or infact any family members of the complainant were not examined in the present case. Other than these witnesses, no other material has been brought on record by the prosecution to show as to how the accused might have entered the house of the complainant, whether he had any help or not, why no recovery was affected from him and so on.
21.In the given circumstances, the court is of the considered opinion that non- examination of any other witnesses coupled with the fact that no recovery has been affected from the accused when complainant has stated that things were missing from his house after the said incident, has been fatal to the case of the prosecution. The sole testimony of PW-1, even if the same is taken to be completely corroborated by the testimonies of PW-2 and PW-3 is not enough to prove the allegations against the accused. Accordingly, in the absence of any public witnesses or audio/video proof of the recovery, the case of the Digitally FIR No. 247/2024 State vs. Mannu @ Manish Page no. 9/11 signed by PAYAL PAYAL SINGAL Date:
SINGAL 2024.12.23
17:32:27
+0530
prosecution does not hold good. In this context, reference can also be made to the judgment of Hem Raj v. State of Haryana AIR 2005 SC 2110, wherein it has been observed that :
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.".
22. In the given circumstances, the court is of the opinion that as per the cardinal principle of criminal jurisprudence wherein an accused is presumed to be innocent until proven guilty beyond reasonable doubt, the burden of which never shifts and always lies upon the prosecution, in the case at hand, the prosecution has failed to discharge the said burden. Firstly, the prosecution has failed to examine any other witnesses other than the complainant especially since the complainant caught the accused with the help of his neighbour. Secondly, let alone any other public witness, the prosecution has failed to explain why the family members of the complainant itself were not examined as witnesses. Thirdly, the prosecution has failed to explain the fact that no recovery was affected from the accused when it is not their case that accused committed the said act with some other associates.
23. In view of the aforesaid discussion, this Court is of the considered opinion, that the prosecution has failed to prove the charges u/s 457/380/511 IPC beyond all reasonable doubts against the accused person. Accordingly, accused Mannu @ FIR No. 247/2024 State vs. Mannu @ Manish Page no. 10/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.12.23 17:32:37 +0530 Manish stands acquitted of the charges u/s 457/380/511 IPC.
(Announced in open Court on 23rd December 2024 ) (The judgment contains 11 pages and all the pages bear my signatures) (Payal Singal) JMFC-09/Central/THC Delhi/23.12.2024 Digitally signed by PAYAL PAYAL SINGAL Date: SINGAL 2024.12.23 17:32:47 +0530 FIR No. 247/2024 State vs. Mannu @ Manish Page no. 11/11