Delhi District Court
State vs Deepak on 24 June, 2024
IN THE COURT OF MS. ANAMIKA:
MM-06, NDD, PHC, NEW DELHI
State Vs. Deepak
FIR No.: 96/2023
P.S.: North Avenue
U/Sec.: 379/411 IPC
& Section 3 Prevention of Damage
to Public Property Act, 1984
JUDGMENT :-
Srl. No. of the case & Date of 10581/2023 dt. 06.11.2023 institution Date of commission of offence 14.10.2023 Name of the complainant Sh. Aman Preet Singh Name of the accused Deepak S/o. Sh. Ram Charan R/o. Vegabond Gurudwara Bangla Sahib, Parliament Street, New Delhi Nature of offence complained of U/s. 379/411 IPC & Sec. 3 PDPP Act, 1984 Plea of the accused person Accused pleaded not guilty Date of reserving order 04.06.2024 Final Order Convicted Date of order 24.06.2024 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
1. In the present case, accused is facing trial for offences punishable under Section 379/411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 on the allegations that on 14.10.2023 at about 10:00 a.m. at foot over bridge near Psychiatric Department, RML Hospital, New Delhi falling within the jurisdiction of PS North Avenue, accused was FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 1 caught red handed while removing fiber sheets (which were public property) installed over foot over bridge and removed three fiber sheets, causing mischief.
2. After completion of investigation, charge-sheet was filed on 06.11.2023 and cognizance of the offence was taken on the same day. Copy of chargesheet was supplied to accused on 23.11.2023 and charge for offences punishable under Section 379/411 IPC & Section 3 PDPP Act was framed upon the accused on 11.12.2023, to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined six witnesses.
4. PW1 Sh. Amanpreet Singh is the complainant who has deposed that in the month of October, 2023, he was working as Security Guard with Kamal Security Pvt. Ltd. He has further deposed that on 14.10.2023, he was posted as Security Guard at NDMC footover bridge at BSM Marg. He has further deposed that on that day, his duty hours were from 8:00 a.m. to 8:00 p.m. He has further deposed that at around 10:00 a.m., he noticed that one person was dismantling the installed fiber sheets and had already dismantled three fiber sheets. He has further deposed that he apprehended the accused alongwith the dismantled fiber sheets. He has further deposed that he had also one screw driver, spanner and one red colour box. He has further deposed that he called Subot Kumar, who was the security guard at the night shift, who reached there and called the police. He proved his statement Ex. PW1/A, site plan Ex. PW1/B, seizure memo of recovered case property Ex. PW1/C, seizure memo of recovered FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 2 articles from the accused Ex. PW1/D, arrest memo and personal search memo Ex. PW1/E and Ex. PW1/F. He has correctly identified the accused as well as case property before the court. Thereafter, he was cross-examined and discharged on 04.03.2024.
5. PW2 is Sh. Subodh has deposed on the same lines as deposed by PW1. Thereafter, he was cross-examined and discharged on 04.03.2024.
6. PW3 is HC Shri Bhagwan who has deposed that on 14.10.2023, on receiving DD No.17A, he alongwith ASI Rajender went to the spot of occurrence i.e. BSM Marg, foot over bridge where complainant Amanpreet Singh alongwith security guard Subodh Kumar were present. He has further deposed that the accused was already apprehended by the guard. He has proved the seizure memos Ex. PW1/C and Ex. PW1/D, arrest memo Ex. PW1/E, personal search memo Ex. PW1/F and disclosure statement Ex. PW3/A. Thereafter, he was cross- examined and discharged on 15.04.2024.
7. PW4 is Mohd. Mamur who has deposed that on 14.10.2023, he was posted as JE at Upkhand Bibhag 4, NDMC, Udyan Marg Road, Seva Kendra. He has further deposed that in front of RML Hospital Gate No.7 at BSM Marg, one foot over bridge was constructed by NDMC for benefit of people and lift is also installed near foot over bridge. He has further deposed that on that day at about 10:15 a.m., security guard Subodh Kumar called him and informed that the complainant Amanpreet Singh had caught one person red handed while committing theft of fibre FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 3 sheet from foot over bridge. He has further deposed that there was no bill available with the NDMC. He has correctly identified the accused before the court. Thereafter, he was cross-examined and discharged on 15.04.2024.
8. PW5 is ASI Rajender, IO of the case who has deposed that on 14.10.2023, DD No.17A assigned to him regarding the thief being apprehended upon which he alongwith HC Shri Bhagwan reached at the spot at foot over bridge, BSM Marg. He has further deposed that the accused was already apprehended by the complainant and security guard. He has further deposed that stolen articles i.e. three fiber sheets, one screw driver, three keys of 10 number, 9 number and 6 number, two paanas and one red color box were handed over to him by the complainant alongwith the accused. Thereafter, he recorded the statement of the complainant Ex. PW1/A. He prepared the rukka Ex. PW5/A, got the present FIR registered through HC Shri Bhagwan, prepared site plan Ex. PW1/B, seizure memo of three fibre sheets Ex. PW1/C, seizure memo of three keys (Chabi) bearing numbers 10, 09 & 06, one screw driver(pechkash), two paanas and one red color box Ex. PW1/D. He has further deposed that he sealed the red color box containing abovesaid articles in white color pulanda and sealed the same with the seal of RK. He has further deposed that he handed over the memo seal to HC Shri Bhagwan.
I proved the arrest memo Ex. PW1/E and personal search of the accused Ex. PW1/F. Thereafter, he returned to the PS alongwith the complainant and the accused and recorded the statement of Subodh Kumar and the supplementary statement of the FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 4 complainant namely Amanpreet Singh. He has further deposed that he recorded the disclosure statement of the accused Ex. PW3/A. He has correctly identified the accused before the court. Thereafter, he was cross-examined and discharged on 30.05.2024.
9. Vide separate statement under Section 294 Cr.P.C dt.15.04.2024, the accused admitted the genuineness of registration of FIR alongwith certificate U/s. 65(B) Indian Evidence Act and GD No.0017A Ex. A1 (colly). Consequently, the formal witness was dropped from the list of PWs and PE was closed vide order dated 30.05.2024.
10. Statement of accused was recorded Under Section 313 Cr.P.C. on 01.06.2024 wherein he admitted the case of the prosecution and refused to lead any defence evidence.
11. Final arguments were advanced at length by Ld. APP for the State and by Ld. LAC for the accused.
12. I have considered the submissions and perused the record carefully.
13. This being a criminal case, the burden of proving guilt of accused lies upon the prosecution for which the standard required is beyond reasonable doubt. In the present case, the accused has been charged with offence of committing theft. Theft is defined under Section 378 IPC. The essential ingredients of the theft are:-
a. A dishonest intention to take any movable property out of the possession of any person without the person's consent and, b. Moving of the said property by the accused in order to such taking.
Hence, the movement of any movable property from the FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 5 possession of a person without the person's consent coupled with dishonest intention on the part of the accused constitutes the offence of theft. Further, explanation 1 to Section 378 IPC lays down that a thing attached to the earth becomes a subject of theft that is, a movable property within the context of Section 378 IPC, as soon as it is severed from the earth. Also, explanation 2 clarifies that a moving affected by the same act which causes the severance may be theft.
14. In the present case, the object that was allegedly stolen by the accused were fiber sheets installed in the foot over bridge near RML Hospital. Once, the said fiber sheets were severed by the accused, it would constitute the offence of theft within the meaning of explanation 1 & 2 to Section 378 IPC as discussed above.
15. Now, it is to be examined if the prosecution has proved its case beyond reasonable doubt against the accused for offences punishable under Section 379/411 IPC and Section 3 PDPP Act.
16. Eye-witness/PW1 is the star witnesses of the prosecution. He has deposed that in the month of October, 2023, he was posted as a security guard at NDMC foot over bridge at BSM Marg. He has directly witnessed the accused dismantling the installed fiber sheets at the foot over bridge. The witness also correctly identified the accused in the court. It is pertinent to note that the eye-witness PW1 had also apprehended the accused and had seen the latter carrying one screw driver, spanner and one red color box which were used in the commission of the offence i.e. dismantling of the fiber sheets. The witness has proved his FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 6 statement and the site plan prepared at his instance. He has also proved the seizure memo of the case property which were recovered in his presence and at his instance. Further, the witness has correctly identified the screw driver and other instruments used by the accused in the commission of the offence, before this court. The witness has also correctly identified the stolen case property, before this court.
17. PW2 and PW4 are the next links in the chain of events that occurred after the apprehension of the accused by PW1. PW1 has deposed that he called PW2 who was another security guard performing night duty in the relevant period pertaining to the date of the offence. PW2 has corroborated the said fact of information being received regarding the apprehension of the accused at the spot. When PW2 reached the spot he witnessed the accused carrying the instruments used for the commission of the offence as deposed by PW1. PW2 was also a witness to the seizure of the stolen case property and the tool kit being carried by the accused which further strengthens the case of the prosecution as PW1 and PW2 are both the witnesses of recovery of the stolen case property.
18. It is also to be noted that PW3 has deposed regarding receiving of information of the incident on 14.10.2023 which further corroborates the manner of commission of the offence as deposed by PW1 & PW2. Both PW3 and IO PW5 have deposed that when they reached the spot, the complainant PW1 had already apprehended the accused and that further investigation was conducted at his instance. Hence, all the prosecution FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 7 witnesses have given their testimonies in support of the case of the prosecution. Their testimonies have stood the test of cross- examination conducted on behalf of the accused and there is no reason to doubt their version.
19. Ld. LAC for the accused has argued that the IO did not collect any ID or duty register of the NDMC in order to prove the fact that PW1 i.e. the eye-witness to the incident was on duty on the relevant date and time of the incident. It has further been pointed out that the IO did not take photographs of the spot from where the fiber sheets were removed. The said contention of Ld. LAC do not hold ground for two reasons. Firstly, there was no requirement to produce the ID card of PW1 in order to lend credibility to the deposition given by him. He has stated on oath before this Court that he was the eye-witness to the incident and other witnesses have corroborated the fact that PW1 had apprehended the accused at the spot. In the said scenario, it is irrelevant as to what was the duty of the witness on the date and time of the incident. The eye-witness could have been any public person who would be present at the spot and who would have witnessed the incident. There is no reason to doubt the testimony given by PW1 as to his presence at the spot on the date and time of the incident. Secondly, any omission committed by the IO during investigation does not necessarily give the benefit of doubt to the accused. It is settled proposition of law that the accused cannot be acquitted solely on the basis of certain lacuna or defect in investigation. In the case titled as C. Muniappan Vs. State of Tamil Nadu (2010) 9 SCC 567, following discussion FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 8 made in this regard by the Hon'ble Apex Court.
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigation or to the omission or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded."
In the present case, it was lapse on the part of the IO to not take photographs of the spot or the duty register maintained by the NDMC. However, such defects are minor defects when compared with the veracity of the depositions given in the court by the eye-witness and other prosecution witnesses. Further, not collecting the bill of the stolen case property cannot be considered to be lapse on the part of the IO as the same was not provided by the concerned officer i.e. JE of NDMC who has been examined as PW4 during trial. PW4 has clearly deposed regarding the construction of foot over bridge by the NDMC and has also deposed that there was no bill available with the NDMC of the said fiber sheets.
20. This Court cannot turn nelson eye to the admissions made by the accused in his statement recorded under Section 313 Cr.P.C. When the entire case presented by the prosecution alongwith the evidence recorded during trial was put forth to the accused, he admitted that he was apprehended at the spot by the security guard while he was trying to steal the fiber sheets. In case titled as Prem Chand vs. State of Maharashtra 2023 LiveLaw (SC) 168, the Hon'ble Supreme Court of India FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 9 summarized the essential principles pertaining to Section 313 Cr.P.C. It was held that the explanation given by the accused at the stage of recording his statement U/s. 313 Cr.P.C. cannot be considered in isolation but in conjunction with the evidence adduced by the prosecution and therefore, there can be no conviction solely on the basis of Section 313 Cr.P.C. statement. However, the explanation given by the accused at the stage of recording of his statement U/s. 313 Cr.P.C. has to be considered within the context of evidence recorded and the same can strengthen the case of the prosecution if there is cogent evidence adduced at the stage of trial. Further, the evidentiary value of the statement given by the accused under Section 313 Cr.P.C. has been discussed in case titled as Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257. The Hon'ble Apex Court observed as follows:
52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the court. One of the main objects of recording of a statement under this provision of Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction.
Even under the latter, he faces the consequences in law.
21. The accused has admitted the entire case of the prosecution and has not given any explanation to the evidence appearing against him when his statement U/s. 313 Cr.P.C. was recorded. The accused has only submitted that he was induced to commit FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 10 the offence by another person. That in itself cannot become an alternate version put forth by the defence. Hence, when the statement of the accused U/s. 313 Cr.P.C. is read alongwith the evidence produced by the prosecution, it is clearly established that the accused committed theft of the fiber sheets installed at the foot over bridge of NDMC on the date and time of the incident.
22. The accused has also been charged for offence punishable under Section 411 IPC. As already discussed above, the prosecution has successfully proved its case of theft against the accused. However, as the facts would suggest that accused was apprehended while committing the theft as he had already dismantle the fiber sheets attached with the foot over bridge. However, the recovery was made immediately after the apprehension. As such, the accused cannot be convicted for offence punishable under Section 411 IPC as well as Section 379 IPC together. The Hon'ble High Court Gauhati in case titled as Amita Ghosh and anr. Vs. State of Tripura has held that the charge under Section 411 IPC cannot be brought against a person who himself has been held for commission of theft as in the definition of theft, it has been provided that whoever intending to take dishonestly any movable 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. The word 'taking' was held to include retention as appearing in the provision under Section 411 IPC. Similarly, in the case titled as Sunil Mashi @ Silly Vs. State of NCT of Delhi Crl. Appeal No. 610/2013 FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 11 decided on 14.10.2014, it was held by the Hon'ble Delhi High Court that "Appellant was rightly convicted under Section 379 IPC, however, the Ld. Trial Court has convicted the appellant for offence under Section 411 IPC as well, keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under Section 411 IPC. As such, his conviction under Section 411 IPC is set aside."
23. Hence, in view of the above discussion, the accused cannot be convicted for offence punishable under Section 411 IPC.
24. The accused has also been charged for offence punishable under Section 3 PDPP Act. The relevant provision is reproduced below:
"3.Mischief causing damage to public property.-(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2)Whoever commits mischief by doing any act in respect of any public property being -
2.The Prevention of Damage to Public Property Act, 1984 a. any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
b. any oil installation;
c. any sewage work;
d. any mine or factory;
e. any means of public transportation or of tele-communication or any building, installation or other property used in connection therewith shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months."
Perusal of the above provision shows that there two kinds of punishments envisaged for the offence under Section 3(1) FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 12 PDPP Act and Section 3(2) PDPP Act. It has to be considered that the property in question is a public property or not and whether the said property falls in the category of Section 3(1) or 3(2) PDPP Act. In order to attract the aforesaid provision, it also needs to be examined if mischief was caused regarding a public property.
25. Mischief has been defined under Section 425 IPC which lays down that there needs to be an intent or knowledge of wrongful loss or damage to a property alongwith destruction of the said property causing a decrease in its value. Hence, even if intention to cause damage or destruction to the property in question is not present, knowledge on the part of the accused that his act is likely to cause damage or destruction to public property is enough to attract the provision of mischief or in the present case, Section 3 PDPP Act. In the case at hand, it has been sufficiently proved that the accused had removed three fiber sheets from the foot over bridge installed by the NDMC. It has been argued that the IO has not taken any photographs of the spot in order to demonstrate the manner of destruction of public property. However, as already discussed above, eye-witness as well as other evidence on record has clearly established the fact that theft in the present was not merely committed by moving the fiber sheets from the bridge but also by dismantling it. Hence, it is not the case of the prosecution that the accused merely moved the fiber sheets in order to commit theft but rather dismantled them from their position and rendered the sheets useless. PW4 has deposed that the foot over bridge was constructed by the FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 13 NDMC for the benefit of the people. It can not be assumed that the fiber sheets had no use by being attached with the aforesaid bridge. It definitely lend purpose towards its use by the common public. Hence, dismantling the same would definitely cause destruction or change in the property within the meaning of Section 425 IPC read with Section 3 PDPP Act. As one would reiterate, any defect in investigation cannot strike at the root of the prosecution's case when there is enough material in support of it.
26. The public property regarding which mischief had been committed is the foot over bridge of the NDMC. PW4 has already deposed that the same was constructed by the NDMC which leaves no doubt to the fact that the property in question was indeed a public property within the meaning of Section 3 PDPP Act. However, the said property does not fall within list given in Section 3(2) PDPP Act. Hence, the property would fall within Section 3(1) PDPP Act by default.
27. In view of the above discussion, it has been established by the prosecution beyond reasonable doubt that the accused committed theft of three fiber sheets from the foot over bridge installed for public use and is therefore, convicted for offence punishable under Section 379 IPC and Section 3(1) PDPP Act.
However, in view of the law laid down by the Hon'ble Delhi High Court as discussed above, the accused cannot be simultaneously convicted for offence punishable under Section 411 IPC. Hence, he is acquitted for the said offence in the present matter.
FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 1428. Thus, as a cumulative effect of all the points discussed above, accused namely Deepak is convicted for offences punishable under Section 379 IPC and Section 3(1) PDPP Act.
Copy of judgment be supplied to the convict, free of cost.
(Typed upon dictation directly
on court computer and Digitally signed
by Anamika
announced in the open Anamika Date:
2024.06.24
Court today dated 24.06.2024) 16:50:14 +0530
(ANAMIKA)
Metropolitan Magistrate-06 (NDD)
Patiala House Courts, New Delhi
FIR No.96/2023 PS North Avenue State vs. Deepak Page No. 15