Delhi District Court
State vs Rajesh @ Shashi on 3 January, 2019
Digitally
signed by
VAIBHAV
VAIBHAV MEHTA
MEHTA Date:
2019.01.04
State v. Rajesh @ Shashi 11:36:35
+0530
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Rajesh @ Shashi
FIR No. 847/13
PS Mehrauli
U/s- 380/454/411 IPC
JUDGMENT
1 Serial No. of the case : 2036547
2 Date of commission : 30.10.2013
3 Date of institution of the case : 14.01.2015
4 Name of complainant : Sh. Thaman Bahadur
5 Name of accused : Rajesh @ Shashi S/o Sh.
Sohan Lal, R/o.H. No. 10,
Himanyu Pur, S.J. Enclave,
New Delhi
C/o. Sanjay Tyagi Behind
Chattarpur, New Delhi.
6 Offence complained of : U/s 380/454/411 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 03.01.2019
9 Final order : Convicted u/s. 411 IPC
Acquitted U/s. 380/454 IPC
10 Date of judgment : 03.01.2019
BRIEF FACTS AND REASONS FOR DECISION
1 The brief facts of case are that on 30.10.2013, in between 08.00
A.M. to 01.00 P.M., at Mittal Garden, Chattarpur, New Delhi, accused FIR No.847/13, PS: Mehrauli 1 of 11 State v. Rajesh @ Shashi
Rajesh @ Shashi committed theft of five grams jewelery, ten sarees, five chadar (bed-sheet), one LG TV Portable and cash of Rs.56,000/- from the house of the complainant Thaman Bahadur, without his consent and broke enter the house of the complainant Thaman Bahadur with intention to commit offence of theft by effecting his entrance by breaking the lock installed by the complainant and on the same date and time, the TV and cash of Rs.45,000/- were recovered from possession of accused. Thereafter, the present FIR U/s. 380/454/411 IPC was registered against accused Rajesh @ Shashi.
2 After completion of investigation, charge-sheet was filed against the accused and copy of charge sheet was supplied to the accused in compliance of section 207 Cr.P.C.
CHARGE 3 Charge under section 454/380/411 IPC was framed on 24.09.2015 qua accused Rajesh @ Shashi, wherein the accused pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION 4 In order to prove its case prosecution has examined nine witnesses.
FIR No.847/13, PS: Mehrauli 2 of 11
State v. Rajesh @ Shashi
PWs Name Designation
PW-1 Sh. Thaman Bahadur the complainant
PW-2 HC Mukesh Kumar Duty Officer
PW-3 HC Ashok Kumar MHC (M)
PW-4 Ct. Naveen Assisted the IO.
PW-5 ASI Rajesh Rai First IO
PW-6 Ct. Vikas Kumar Accompanied HC Rajesh Rai to the
spot.
PW-7 HC Hemant IO of the case.
PW-8 ASI Radhey Shyam Duty Officer
PW-9 HC Vikas Mavi Prepared the Charge Sheet.
5 The prosecution has relied upon the following documents: -
Srl. Exhibited by Documents Exhibited as
Nos.
1 PW-1 Sh. Statement of complainant Ex.PW-1/A
Thaman Memo in respect of seizure Ex.PW-1/B
Bahadur of TV and cash of
Rs.45,000/-
Arrest Memo in respect of Ex.PW-1/C
accused Rajesh @ Shashi
Personal Search Memo in Ex.PW-1/D
respect of accused Rajesh
@ Shashi
Disclosure Statement and Ex.PW-1/E &
Pointing Out Memo of Ex.PW-1/F
accused respectively
2 PW-2 HC Copy of FIR No. 847/13 Ex.PW-2/A
Mukesh Kumar Endorsement on rukka Ex.PW-2/B
FIR No.847/13, PS: Mehrauli 3 of 11
State v. Rajesh @ Shashi
3 PW-5 ASI Rukka Ex.PW-5/A
Rajesh Rai
4 PW-7 HC Report of Crime Team Mark PW-7/A
Hemant Site Plan Ex.PW-7/B
5 PW-8 ASI DD Entry No. 34-A Ex.PW-8/A
Radhey Shyam
6 PW-1 Sh. Thaman Bahadur deposed that on 30.10.2013 at about
08.00 am, he alongwith his wife went for his job after locking his house and when he returned to his home at about 01.00 pm, he found that his door was broken and his articles were missing i.e. his TV, 10 Sarees, 5 Bed Sheets, 5 Gms Gold Jewelery and Rs.56,000/- cash, after which, he called at 100 number and Police came at his house and investigated the scene and after that, complainant went to PS Mehrauli, where Police recorded his statement and same was proved as Ex. PW1/A. PW-1 further stated that the police recovered TV and cash of Rs.45,000/-vide memo, which was proved vide Seizure Memo Ex. PW1/B and the accused was arrested by police vide memo Ex.PW1/C and his personal search was conducted vide memo Ex. PW1/D and disclosure statement and pointing out memo of the accused was recorded vide memo Ex. PW1/E and PW1/F respectively.
PW-1 correctly identified the accused in the court 7 PW-2 HC Mukesh Kumar deposed that on 30.10.2013, at about 9.15 P.M., Ct. Vikas came to PS and handed over a rukka to him for registration of case sent by HC Rajesh Rai and on the basis of rukka, he registered the FIR bearing No. 847/13, copy of which was proved as FIR No.847/13, PS: Mehrauli 4 of 11 State v. Rajesh @ Shashi Ex.PW-2/A and he further made endorsement on rukka, which was proved as Ex.PW-2/B. 8 PW-3 HC Ashok Kumar brought the register No. 19 and deposed that as per the said register, LG TV and Cash of Rs.45,000/- were deposited in the Malkhana on 01.11.2013 vide Mud No. 3724 and the same were released on superdari on 12.11.2013 to Sh. Thaman Bahadur.
9 PW-4 Ct. Naveen deposed that on 30.10.2013, he joined the investigation of the present case with HC Hemant and then went to Mittal Garden where they met the complainant Thaman Bahadur and HC Rajesh Rai and HC Rajesh Rai showed the spot to HC Hemant and handed over Crime Team report also after which, HC Hemant prepared the Site Plan at the instance of Thaman Bahadur and they went in search of the accused and when they reached at Y point through 100 Foota Road, one secret informer informed HC Hemant that accused Rajesh was carrying TV and was going towards Chattarpur Mandir in the house of Sanjay where he lives and the secret informer pointed towards the house of accused. PW-4 further deposed that they reached at the house of accused and met accused and enquired about the present case wherein accused disclosed that he had committed offence at the house of Thaman Bahadur and got recovered TV and cash of Rs.45,000/- and seized the same and also recorded the disclosure statement of accused and further recorded the point out memo of the place of incident vide Memo Ex.PW-1/F and thereafter, the accused was FIR No.847/13, PS: Mehrauli 5 of 11 State v. Rajesh @ Shashi arrested and his personal search was conducted.
PW -4 correctly identified the accused in the Court.
10 PW-5 ASI Rajesh Rai proved the rukka as Ex.PW-5/A 11 PW-6 Ct. Vikas Kumar and PW-7 HC Hemant deposed on the same lines as PW-4 Ct. Naveen. PW-7 HC Hemant also proved copy of the report of the Crime Team as Mark PW-7/A. 12 PW-8 ASI Radhey Shyam proved DD No. 34 A as Ex.PW-8/A 13 PW-9 HC Vikas Mavi stated that he filed the the charge sheet in the Court.
14 Thereafter, PE was closed on 27.11.2018 and the matter was listed for recording of statement U/s. 313 Cr.P.C. of accused Rajesh @ Shashi.
EXAMINATION OF ACCUSED U/S. 313 CR.P.C. 15 Statement of accused U/s. 313 Cr.P.C. was recorded on 04.12.2018, wherein he opted not to lead DE and the matter was listed for final arguments.
FINAL ARGUMENTS 16 Ld. APP for the State has argued that prosecution witnesses have FIR No.847/13, PS: Mehrauli 6 of 11 State v. Rajesh @ Shashi
given consistent depositions and the testimony of PW-1 Sh. Thaman Bahadur stands corroborated by the testimony of other prosecution witnesses. Therefore, the prosecution has proved its case beyond doubt and the accused is liable to be convicted.
Accused Rajesh @ Shashi was informed at every stage of the case that he could avail the services of LAC. However, he refused to take services of LAC and had argued his case on his own. The accused has argued that there are serious inconsistencies and infirmities in the deposition of prosecution witnesses and therefore, the prosecution has not been able to prove his guilt beyond doubt and therefore, h e is liable to be acquitted.
LEGAL PROVISIONS 17 Section 378 IPC is stated as under : -
Theft - Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking is said to commit theft.
Section 379 IPC is stated as under : -
Punishment for theft - Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 380 IPC is stated as under : -
Theft in dwelling house, etc. - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human FIR No.847/13, PS: Mehrauli 7 of 11 State v. Rajesh @ Shashi 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.
Section 441 IPC is stated as under 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".
Section 454 IPC is stated as under : -
Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment-
Whoever commits lurking house -trespass, or house-breaking, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 410 IPC is stated as under: -
Stolen property: - Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which FIR No.847/13, PS: Mehrauli 8 of 11 State v. Rajesh @ Shashi has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property" [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
Section 411 of IPC is stated as under:-
Dishonestly receiving stolen property -- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
COURT OBSERVATIONS
18 On the basis of material on record including testimonies of witnesses and after hearing arguments of counsel for accused as well as Ld. APP for the State, this Court makes the following observations: -
(a) PW-1 Sh. Thaman Bahadur is the complainant and is the main witness of the prosecution, who stated that on 30.10.2013, when he came back home, he found his door in broken condition and found that his articles were missing, which included his TV, ten Sarees, five bed sheets, five Gram Gold Jewelery and cash amounting to Rs.56,000/-.
FIR No.847/13, PS: Mehrauli 9 of 11 State v. Rajesh @ Shashi (b) The complainant did not see the culprit, who committed theft of the
said articles and had broken the door of his house.
(c) The prosecution could not produce any witness, who had seen the accused committing the offence of house breaking and theft.
(d) After going through the material on record, this Court is of the view that the prosecution has not been able to prove the guilt of the accused Rajesh @ Shashi beyound doubt qua offences U/s. 380/454 IPC.
(e) As far as offence U/s. 411 IPC is concerned, the testimonies of PW-4 Ct. Naveen, PW-6 Ct. Vikas Kumar and PW-7 HC Hemant are consistent wherein they have categorically stated that the stolen TV as well as cash amounting to RS.45,000/- was received from the possession of accused Rajesh @ Shashi.
Their testimonies are corroborated by the Seizure Memo placed on record by the prosecution.
(f) The only defence of the accused is that the aforesaid recoveries were planted upon him and he had done nothing wrong as alleged.
(g) After going through the material on record, this Court is of the view that the prosecution has been able to prove the guilt of accused Rajesh @ Shashi qua offence U/s. 411 IPC beyond doubt.
FIR No.847/13, PS: Mehrauli 10 of 11 State v. Rajesh @ Shashi
For the reasons mentioned above, this Court is of the view that prosecution has been able to prove the guilt of accused Rajesh @ Shashi beyond doubt qua offence U/s. 411 IPC. However, the proseuction has not been able to prove the guilt of accused Rajesh @ Shashi qua offences U/s. 380/454 IPC.
Let accused Rajesh @ Shashi be heard on quantum of sentence.
Announced in the open (VAIBHAV MEHTA )
court on 03.01.2019 MM-5 (South), Saket Courts
New Delhi
FIR No.847/13, PS: Mehrauli 11 of 11