Delhi District Court
State vs . Shan Mohd. @ Shanu on 18 July, 2022
IN THE COURT OF MS. RENU CHAUDHARY
METROPOLITAN MAGISTRATE04, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
FIR No. 523/15
PS Shakarpur
State Vs. Shan Mohd. @ Shanu
CNR No.DLET020000322015
(a) Sr. No. of the case 35/2016
(b) Date of offence 10.03.2015
(c) Complainant Sh. Vinit Jain
(d) Accused, parentage and Shan Mohd. @ Shanu S/o Sh.
address Islamuddin R/o E-37, A-63, 27 Block
Sanjay Camp, Trilokpuri, Delhi.
(e) Offence complained of Section 380/454/511 IPC & 103 D. P.
Act
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted for the offences U/Sec.
454/511 IPC &
Convicted for offence U/Sec. 103 D.P.
Act.
(h) Date of institution 21.11.2015
(i) Date when judgment was 04.07.2022
reserved
(j) Date of judgment 18.07.2022
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.1 of 17
JUDGMENT
1. Present chargesheet has been forwarded by the SHO, PS Shakarpur against the accused to face trial for the offences under Section 380/454/511 IPC & 103 D. P. Act.
2. In nutshell, the case of the prosecution is that a complaint was made by the complainant Vinit Jain stating that on 10.03.2015, at about 05.00 p.m, at H. No.NB135A, Street No.5, Shakarpur, Delhi, the accused committed house breaking by breaking open the lock of the complainant's house. When the accused was apprehended by the public persons, he was found in possession of 06 water meters & he failed to account for such possession. Hence, the accused was then arrested in the present case & remaining investigation was completed.
3. Consequently, the case was registered and the final report was filed after completion of investigation for offences under Section 380/454/511 IPC & Section 103 D. P. Act against accused Shan Mohd. @ Shanu.
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.2 of 17
4. After taking cognizance, accused was summoned. On appearance of accused, copy of the chargesheet alongwith documents were supplied to him in compliance of Section 207 Cr.P.C. After hearing the parties, charge for the offences U/Sec 454/511 IPC & Section 103 D. P. Act was framed against accused on 28.05.2016 to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, examined as many as 06 witnesses which are as under:
PW1 Vinit Jain, the Complainant PW2 ASI Hem Chand, Police witness PW3 Sumit Sharma, Eye witness PW4 Ct. Ravinder, Police witness PW5 HC Anuj Kumar, Police witness PW6 ASI Rohtas Kumar, Investigating Officer
6. PW1 deposed that on 10.03.2015, at about 5 P.M, when he came downstairs from the 1st floor of his house, he noticed that the lock of the ground floor of the premises was broken, however, nothing was found missing therefrom. PW1 further testified that some public persons had caught hold of a man & were beating him stating that he was the accused who had broken the lock of the ground floor of the complainant's premises. Upon being inquired, the accused disclosed his name as Ajay S/o Ram Pal instead of his actual name which was subsequently revealed as Shan Mohd. @ Shanu. Thereafter, the public persons opened the bag FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.3 of 17 of the accused which was found containing 06 water meters which were stated to have been stolen from other houses of the locality. A call was made to the police who reached at the spot & recorded the statement of the complainant vide Ex. PW1/A. The broken lock alongwith a hammer was seized vide seizure memo i.e. Ex. PW1/B and the 06 water meters were taken into possession vide Ex. PW1/C. Thereafter, site plan was prepared at the instance of complainant as Ex. PW1/D. PW1 correctly identified the accused present in the Court as well as the case property i.e. broken lock (Ex.P1), hammer (Ex.P2) & 06 water meters (Ex.P3 to Ex.P8), produced by MHC(M). The witness was crossexamined on behalf of the accused by LAC wherein PW1 categorically stated that nothing had been stolen from his residence & the accused was caught by the public persons at some distance from his house. It is also stated that the public persons had checked the plastic bag being carried by the accused wherefrom some water meters were recovered which were suspected to have been stolen, however, none was present at the spot from whose premises the said water meters were stolen by the accused. It is deposed that 1012 public persons were present at the spot when the police reached there but their statements were not recorded by the police.
PW1 deposed that he could not remember if the site plan was prepared by the IO or not & that the police did not inquire anything from the occupants of 2nd floor & 3rd floor of his premises.
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.4 of 17
7. Thereafter, ASI Hem Chand entered the witness box as PW2 & deposed that on 10.03.2015, at about 06.15 p.m., Ct. Anuj came to PS with rukka sent by HC Rohtash for registration of FIR on the basis of which the present FIR was registered as Ex.PW2/A & endorsement was made thereupon vide Ex.PW2/B. PW2 also proved DD No.74B dated 10.03.2015 as Ex.PW2/C & certificate U/Sec. 65B I.E. Act as Ex.PW2/D. The witness was crossexamined by LAC on behalf of accused.
8. Thereafter, Sumit Sharma, the eye witness to the alleged incident entered the witness box as PW3 who deposed that in the year 2015, at about 05.00 p.m. when he reached near house No. MB135A, he noticed that some public persons had gathered there and were beating a boy alleging that he had committed theft at the said property. Thereafter, police was called but meanwhile PW3 had left from the place of incident & his statement was not recorded by the police. The witness failed to identify the accused present in the Court & turned hostile. Therefore, Ld. APP for State after seeking permission from the Court, crossexamined the witness wherein he deposed that he does not know whether the accused present in the Court is the same person who had broken the lock of the premises No. MB135A. PW2 was confronted with his statement U/Sec. 161 Cr.P.C. which he denied to have been FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.5 of 17 made before the IO at any point of time. PW2 was not crossexamined on behalf of the accused despite opportunity.
9. Thereafter, Ct. Ravinder entered the witness box as PW3 & deposed that on 11.03.2015, he joined the investigation with IO/ HC Rohtash Kumar when the mother of accused visited the PS & disclosed the correct name of the accused as Shan Mohammad @ Shanu instead of Ajay @ Shanu as was initially told wrongly by the accused. Thereafter, the accused was arrested vide arrest memo Ex. PW3/A and his personal search was conducted vide Ex. PW3/B. PW4 correctly identified the accused present in the Court. The witness was crossexamined by LAC wherein he deposed that the IO neither recorded the statement of any witness nor interrogated the accused & recorded his disclosure statement in the present case.
10. Thereafter, HC Anuj Kumar entered the witness box as PW5 & deposed that on 10.03.2015, on receiving DD No. 74B, he alongwith Ct. Rohtash visited House No. MB135A, Gali No. 5, Shakarpur, Delhi where they met one Vineet Jain and told accused Ajay @ Sonu had already been taken to LBS hospital for medical examination after which statement of complainant was recorded, rukka was prepared and handed over to PW5 for registration of FIR. Thereafter, PW3 went to the PS and got the FIR registered and after registration of FIR, copy of same FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.6 of 17 alongwith original rukka was handed over to IO. PW3 further deposed that the plastic bag being carried by the accused was found containing six water meters which were seized U/sec. 102 Cr.P.C vide Ex. PW1/C and IO recorded the supplementary statement of the complainant. Thereafter, they reached LBS hospital and collected MLC of accused after which accused was arrested vide Ex. PW5/A and his personal search was conducted vide Ex. PW5/B. IO recorded disclosure statement of the accused vide Ex. PW5/C. PW3 correctly identified the accused present in the Court. Identification of the case property by PW5 was dispensed with and the same was already identified and exhibited during the testimony of PW1. PW5 was crossexamined by LAC on behalf of accused wherein he deposed that some public persons were inquired about the incident from the building where the complainant was residing. It is further deposed that no statement of the family members of the complainant was recorded.
11. Thereafter, ASI Rohtash Kumar entered the witness box as PW6 & deposed that on 10.03.2015, upon receiving DD No.74B (Ex.PW2/C), he went to the place of incident i.e. H. No. MB135A, Gali No.5, Shakarpur, Delhi alongwith Ct. Anuj where it was told by the complainant that accused has been taken to LBS hospital for treatment. PW6 went to LBS hospital & after medical examination of the accused, FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.7 of 17 came back at the place of incident & prepared site plan in the presence of the complainant as Ex.PW1/D after which complainant's statement was recorded vide Ex.PW1/A & endorsement thereupon was made vide Ex.PW6/A. The rukka was sent to PS through Ct. Anuj for registration of FIR. PW6 deposed further that the complainant produced one hammer, one broken lock and a bag containing 06 water meters stating that the said articles were recovered from the possession of accused which was taken into possession vide seizure memo Ex.PW1/B. It was stated that accused had malafidely stated his name as Ajay @ Sonu instead of Shan Mohd. @ Shanu whch was later on disclosed by the mother of the accused at PS on 11.03.2015. Hence, the accused who was previously arrested vide Ex.PW5/A was again rearrested with his correct name vide Ex.PW3/A and his personal search was conducted vide Ex.PW3/B. The disclosure statement of the accused was recorded as Ex.PW5/C. Since the accused failed to account for the possession of 06 water meters, therefore, the same were taken into possession U/Sec. 102 Cr.P.C as Ex.PW1/C. The supplementary statement of the complainant was recorded. It was deposed that no FIR was found lodged regarding the theft of said water meter, therefore, DD No.14B, dated 18.05.2015 and a kalandara U/Sec.103 D.P. Act was prepared against accused vide Ex.PW6/B & ExPW6/C respectively. Production of case property was dispensed with as the same was already exhibited during the testimony FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.8 of 17 of PW1. PW6 was crossexamined at length by LAC wherein he deposed that the recovery of hammer & broken lock was not effected in his presence & that the broken door & broken lock were not photographed. It was deposed that no CCTV camera is installed in the vicinity where the incident had taken place.
12. No other PW was examined and after the completion of PE, Statement of Accused U/Sec.313 Cr.P.C r/w Section 281 Cr.P.C was recorded v.o.d 10.06.2022 wherein accused denied all the incriminating circumstances appearing in evidence against him. He further denied the allegations so levelled against him by the complainant/prosecution. The accused did not wish to lead defense evidence. Hence, DE was closed. Then the matter was listed for final arguments.
13. It was argued by the Ld. APP for the State that 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.
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.9 of 17
14. On the other hand, it was argued by LAC that the prosecution has failed to prove its case beyond all reasonable doubts & there are various inconsistencies in the testimonies of various PWs. After the conclusion of final arguments, the matter was listed for orders.
15. I have heard the arguments advanced by both the parties & gone through the case file carefully & throughly. I have considered the testimony of witnesses & perused the oral as well as documentary evidence available on record.
16. It is a settled legal principle that the prosecution has to prove its case against the accused beyond all reasonable doubts by leading independent, reliable & unimpeachable evidence & has to stand upon its own legs. The burden of proof in a criminal trial always rests upon the prosecution & the same never shifts on the accused. There is no controversy to the preposition that the accused is entitled to the benefit of every doubt occurring in the prosecution's case.
17. In the present case, the accused has been charged for the offences punishable U/Sec. 454/511 IPC & Section 103 D. P. Act. To bring home the guilt of accused U/Sec. 454 IPC, the prosecution had to prove that the accused committed lurking house trespass or housebreaking with an intention to commit an offence punishable with imprisonment or with an FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.10 of 17 intention to commit offence of theft.
The offence of house trespass is defined under section 442 IPC which reads as follows:
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 "housetrespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass.
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 "housebreaking" who commits housetrespass 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 FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.11 of 17 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 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 housetrespass has opened, in order to the committing of the housetrespass 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 housetrespass, or in order to the quitting of the house after a housetrespass.
(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 housetrespass. Explanation.--Any outhouse 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.
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.12 of 17
18. In the present case, no eyewitness has been cited or examined by the prosecution who had seen the accused entering the house of the complainant. No CCTV footage has been placed on recored establishing the fact that accused had entered the complainant's house. No finger prints 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 & at the time of alleged offence. As per PW1 when he noticed that the lock of the ground floor of his premises was broken, he saw that some public persons were bashing a boy at some distance from his house alleging that he was the one who had broken the lock of the ground floor of complainant's residence. Therefore, it stands proved that even the complainant has himself not seen the accused either entering his house or breaking open the lock at the ground floor. Further, it has been categorically stated by PW1 during his examination that nothing was stolen from his premises as nothing was found missing therefrom. The complainant had stated that he was residing at the first floor of the premises & the other floors were occupied by the tenants. Admittedly, the IO made no inquiries from the occupants of the other floors of the complainant's premises regarding the alleged incident & no such occupant has been examined as PW by the prosecution which casts a serious doubt as to the credibility of the prosecution's case. Therefore, it can safely be held that prosecution has not placed on record even an iota FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.13 of 17 of evidence in order to prove the commission of offence by the accused.
19. PW3 was the eyewitness to the incident but he failed to support the case of the prosecution. PW3 did not identify the accused present in the Court & stated that he got to know about the incident from some public persons who were gathered near the house of the complainant & were beating a boy alleging that he has committed theft at complainant's house. PW3 even denied making any statement U/Sec. 161 Cr.P.C to the IO. Hence, the testimony of PW3 cannot be relied upon as he had turned hostile. Also PW3 was a hearsay witness & had not witnessed the accused entering or existing the complainant's premises.
20. Apart from PW3, no other independent or public witness was examined by the prosecution who could have lent strength to the prosecution's case. No such person was cited as a witness nor any reasonable explanation was given by the prosecution for such omission which leads to drawing adverse inference against the prosecution.
21. It is stated by PW6 that none of the recovered case properties belonged to the complainant. As per the PWs, 06 water meters were recovered from the bag of the accused when he was apprehended by the public persons which were stated to have been stolen from the FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.14 of 17 other houses of the locality. However, as per PW1, none had come forward at the time of incident & when the accused was apprehended to verify as to from whose premises the said water meters were stolen. In fact, PW6 had stated during his crossexamination that he had thoroughly investigated the matter & found no FIR registered regarding the theft of the said 06 water meters recovered from the accused were stolen property.
22. It is also noteworthy that the testimony of PWs are also inconsistent in some material particulars which cast a serious doubt as to the veracity of the prosecution's story. For instance, it was deposed by PW1 during his crossexamination that there were 1020 public persons gathered at the place of incident at the relevant time who were also present when the police reached the spot but as per PW5, nobody except the complainant was present at the spot when he reached there. Further, it was disclosed by PW1 that police had not inquired about the incident from the other occupants of building where the complainant resides. But as per PW5, some persons were inquired from the building regarding the alleged incident. PW1 had deposed during his examinationinchief that he had shown the place of incident to the police who had prepared the site plan but during his crossexamination, PW1, contradicting his statement had stated that he does not remember if the site plan was FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.15 of 17 prepared by the IO or not. The prosecution failed to lead any further evidence to prove which of the versions was correct and such failure adversely affects the credibility of the uncorroborated & inconsistent testimony of the prosecution witnesses.
23. It has also been alleged by the prosecution that the accused was found in possession of 06 water meters & the accused failed to account for the same & hence committed offence punishable U/Sec. 103 D. P. Act. As per Section 103 D. P. Act, 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 03 months or with fine which may extend to one hundred rupees, or with both. The accused has failed to given any satisfactory explanation for the possession of the 06 water meters recovered from his possession. 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.
FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.16 of 17 24 In the light of aforesaid facts & circumstances, I hold that the prosecution failed to prove the essential ingredients of the offences under Sections 454/511 IPC against the accused. Consequently, accused Shan Mohd. @ Shanu is entitled to the benefit of doubt & to be acquitted of the offences punishable under Sections 454/511 IPC. However, the accused is found guilty for the offence under Section 103 D. P. Act & stands convicted accordingly.
Let accused be heard on quantum of sentence separately.
Renu Digitally signed by Renu
Chaudhary
Chaudhary Date: 2022.07.18 16:17:29
+0530
Pronounced in the open court ( RENU CHAUDHARY)
on 18th Day of July 2022 MM04/East/KKD/Delhi
It is certified that this judgment contains 17 pages & each Digitally signed page is checked & signed by me. Renu by Renu Chaudhary Chaudhary Date: 2022.07.18 16:17:38 +0530 ( RENU CHAUDHARY) MM04/East/KKD/Delhi 18.07.2022 FIR No.523/15 State vs. Shan Mohd. @ Shanu Page No.17 of 17