Delhi District Court
State vs . Safikul on 26 June, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. SAFIKUL
FIR No. 202/10
New Case No. 301283/16
U/s : 457/380/511/34 IPC
P.S. : Roop Nagar
Date of Institution : 16.12.2010
Date on which case reserved for Judgment : 26.06.2018
Date of judgment : 26.06.2018
JUDGMENT
1.FIR No. of the case : 202/2010
2.Date of the Commission : 30.11.2010
of the offence
3.Name of the accused : (1) SAFIKUL
S/o Sh. Kalid Sekh,
R/o Gali No. 4, Rajjo Ka Makan,
New Chandrawal, Delhi.
(2) Mohd. Salam
S/o Mohd. Alam,
R/o E-Block, 2729, JJ Colony,
Bawana, Delhi was declared to be
Juvenile.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 1 / 17
4.Offence complained of : 457/380/511/34 IPC
5.Plea of accused : Pleaded guilty
6.Final order : Convicted
BRIEF FACTS
1. The story of the prosecution is that on 30.11.2010 at about 1.30 AM at F-39, Kamla Nagar, Delhi falling within the jurisdiction of PS Roop Nagar, accused Safikul alongwith co-accused (Juvenile) in furtherance of his common intention committed the offence of housebreaking by night in order to commit theft and were caught while attempting to commit the theft of the goods in the shop of the complainant Sh. Vinod Kumar Jain and thereby committed offences u/s 457/380/511/34 IPC. The matter was investigated and challan was filed in the Court on 16.12.2010.
2. On the basis of the chargesheet, charge for the offence punishable u/s 380/457/511/34 IPC was framed against accused Safikul and the charge was duly explained to him in vernacular to which he pleaded not guilty and claimed trial on 25.01.2011. Thus, the matter was put to trial.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 2 / 17APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution has examined 9 witnesses in total.
4. PW1 Sh. Virender Kumar Jain deposed that on 30.11.2010, he was running a jewellery shop at ground floor of his house and at about 1.00 AM night he got up for taking water and he heard the noise of opening of shutter of his shop. He immediately woke up his three sons namely Anuj Jain, Rohit Jain and Mohit Jain and they checked the shutter of the shop and found that the shutter was slightly opened and locks were broken and some noises were coming out from the shop. They found the accused alongwith his companion and both were apprehended. Police recorded his detailed statement which is Ex.PW1/A, bearing his signature at point A and seized the broken locks and screwdriver and chhaini from the spot and seized them vide memo Ex.PW1/B and accused alongwith co-accused were arrested vide memos Ex.PW1/C and Ex.PW1/D and their personal search was conducted vide memos Ex.PW1/E and Ex.PW1/F, all bearing his signatures at point A respectively. The case property i.e. Chhaini is Ex.P1, Screwdriver is Ex.P2 and locks are Ex.P3 and P4.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 3 / 175. PW2 Sh. Anuj Jain deposed that on 30.11.2010 his father was running a jewellery shop at ground floor of their house. At about 1.00 AM night his father got up for taking water and in the meanwhile he heard the noise of opening of shutter of his shop. He immediately got up all of us and they checked the shutter of the shop and found that the shutter was slightly opened and locks were broken and some noises were coming out from the shop. They found accused alongwith his companion and accused were apprehended and correctly identified.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
6. PW3 HC Rajender Singh deposed that on 30.11.2010, he was posted as duty officer at PS Roop Nagar from 1.00 AM to 9.00 AM. At about 3.55 AM, a rukka was received by him through Ct. Dharmender which was sent by SI Ranvir. He registered the case vide FIR No. 202/10. Photocopy of the same is Ex.PW3/A and endorsed the same vide Ex.PW3/B. At about 1.55 AM night an information was received in the PS that at F-57m Kamla Nagar round about the thieves had been apprehended and this information was reduced into Roznamcha vide DD No.6A which is Ex.PW3/C. This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 4 / 177. PW4 Sh. Rohit Jain deposed that on 30.11.2010, his father was running a jewellery shop at ground floor of their house. At about 1.00 AM night his father got up for taking water and in the meanwhile he heard the noise of opening of shutter of his shop and he immediately woke up all of them and they checked the shutter of the shop and found that the shutter was slightly opened and locks were broken and some noises were coming out from the shop. They found accused alongwith his companion and accused were apprehended and correctly identified.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
8. PW5 Ct. Raghunath deposed that on 30.11.2010, he was posted as Ct. at PS Roop Nagar and on motorcycle patrolling duty in the area of Kamla Nagar. At about 1.30 AM night, he received a telephone call from Duty officer that an incident of house breaking has taken place at F-39, Kamla Nagar. He immediately reached at the spot where Ct. Dharmender, Ct. Virender, SI Ravi Kumar and some public persons were present. accused were correctly identified by him and medical examined. IO recorded his statement.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 5 / 179. PW6 Ct. Dharmender Kumar deposed that on 30.11.2010, he was posted as Ct. at PS Roop nagar on emergency duty from 8.00 AM to 8.00 PM. On that day, on the instructions of the Duty Officer he went at the spot at F-39, Kamla Nagar where SI Ranvir Singh met him. Ct. Raghunath, Ct. virender and SI Ravi Kumar were present at the spot and he went to PS Roop Nagar and got the case registered vide FIR No. 202/10. his disclosure statement was recorded vide Ex.PW6/A. IO recorded his statement.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
10. PW7 Ct. Virender deposed that on 30.11.2010, he was posted as constable at PS Roop Nagar on night emergency duty and one receiving the telephone call by the duty officer, he alongwith SI Ravi Kumar and Ct. Dharmender reached at spot i.e. F-39, Kamla Nagar where the IO/SI Ranvir Singh was present. SI Ranbir Singh handed over a rukka to Ct. Dharmender for registration of case. Accused was correctly identified and got medically examined from Hindu Rao Hospital and handed over to the IO. IO recorded his statement.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 6 / 1711. PW8 SI Ranvir Singh deposed that on 30.11.2010, he was posted at PS Roop Nagar and on receiving DD No.6A, he went to the spot i.e. F-39, Kamla Nagar, Delhi where complainant Sh. Virender Kumar Jain met him and handed over accused alongwith co-accused to him who were apprehended by complainant with the help of other public persons. During interrogation, accused disclosed his name as Safikul. He recorded the statement of complainant Virender Kumar Jain and crime team was called at the spot and they conducted inspection of the spot, prepared inspection report and handed over same to him. Rukka was handed over to Ct. Dharmender for registration of FIR. He prepared the site plan Ex.PW8/A at the instance of complainant which bears his signature at point A. This witness was not cross-examined by defence despite opportunity given.
12. PW9 SI Ravi Kumar deposed that on 30.11.2010, he was posted as SI with PS Roop Nagar. He took accused and JCL X to Hindu Rao Hospital for their medical examination. After medical examination, accused and JCL were taken back to spot and he handed over accused and JCL to the IO.
This witness was cross-examined by Ld. defence counsel. However his cross-examination is not repeated here for the sake of brevity.
13. Upon completion of Prosecution Evidence, statement of accused Safikul u/s 313 Cr.P.C was recorded on 06.06.2018 wherein he FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 7 / 17 has pleaded innocence and opted not to lead defence evidence. Final arguments were heard on 26.06.2018.
14. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
15. In order to prove its case, the prosecution has examined 9 witnesses in total out of a list of 10 witnesses cited by the prosecution. PW Mohit Jain was another public witness who was dropped at the request of Ld. APP for State on 06.05.2011 as already three witnesses in this respect were examined by the prosecution.
16. Before appreciating the evidence on record, it is necessary to examine the essential ingredients of Section 457 IPC and Section 380 read with Section 511 IPC, which are as follows:
The essential ingredients for proving offence u/s 457 IPC are as follows:
(i) that the accused committed lurking house-
trespass by night, or house-breaking by night.
(ii) that the same was committed to commit theft, or an offence punishable with imprisonment.
The essential ingredients for proving offence u/s 380 IPC are as follows:
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 8 / 17(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful lossto that person or wrongful gain to himself;
(vii) that property was at the time of the theft in a building, tent or vessel. All that is necessary is that the property should be under the protection of the building; it is not necessary to show unlawful entrance into the building.
(viii) that such building, tent or vessel, was then being used as a human dwelling or for the custody of property.
The essential ingredients for proving offence u/s 511 IPC are as follows:
(i) there must be an attempt to commit an offence;
(ii) Such ofence must be punishable under the Indian Penal Code;
(iii) Such offence must be punishable with imprisonment; and
(iv) The accused, in such attempt, must have done an act towards the commission of an offence.FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 9 / 17
17. In the light of the above mentioned terms, it is necessary to see whether there is sufficient evidence on record of the public witnesses supported by their oral testimony and documentary evidence to bring home the guilt of accused Safikul u/s 457/380/511/34 IPC.
18. PW1 Sh. Virender Kumar Jain deposed that on the day of incident i.e. 30.11.2010 at about 1.00 AM at night when he got up for having water, he heard the noise of shutter of his shop being opened. He immediately woke up his sons namely Anuj Jain, Rohit Jain and Mohit Jain. They went to check the shutter of the shop and found the shutter slightly opened. They also noticed that the locks of the shutter of the shop were broken and noises were coming out from the shop. Thereafter, they entered inside the shop and found that two accused persons namely Safikul and Mohd. Salam were present inside the shop and they were attempting to commit theft of jewellery articles. They were caught inside the shop and police was informed. Thereafter, police came to the spot and both accused persons were handed over to the police.
19. In this regard, the statement of complainant is Ex.PW1/A, bearing his signature at point A was also recorded and broken locks and screwdriver and chhaini were seized from the spot vide memo Ex.PW1/B. He further deposed that both accused persons were arrested in his presence vide memo Ex.PW1/C and Ex.PW1/D and their personal search Ex.PW1/E and Ex.PW1/F respectively. He further identified the case property produced before him which was duly sealed with the seal of RS which is Ex.P1, Ex.P2, Ex.P3 and Ex.P4 being Chhaini, screwdriver and the two locks respectively.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 10 / 17This witness was cross-examined by Ld. defence counsel, however, no material contradiction could be noted. His testimony is corroborated by his original statement Ex.PW1/A wherein the above mentioned incident has been repeated as above. His statement was recorded on 30.11.2010 whereas he deposed in the court on 18.02.2011 and no contradiction as such has been noted in his testimony.
20. The testimony of PW1 is further supported by PW2 Sh. Anuj Jain who also identified the accused and deposed consistently on similar lines as PW1.
21. The testimony of PW1 and PW2 is further corroborated by PW Rohit Jain who also deposed on the similar lines as PW1 and PW2 and correctly identified the accused Safikul and deposed as regards other co-accused (Juvenile namely Mohd. Salam).
22. All the above mentioned eye witnesses have been cross- examined by Ld. Defence counsel. However, no contradiction in their testimony could be noted and they have coherently deposed on the similar lines as regards the incident.
23. The registration of FIR has been proved by PW3 HC Rajender Singh who deposed that he received rukka at about 3.55 AM through Ct. Dharmender which was sent by SI Ranvir on the basis of which he recorded the present FIR. The copy of which is Ex.PW3/A (OSR). On the basis of endorsement and original rukka which is Ex.PW3/B. FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 11 / 17
24. He further deposed that on that day at about 1.55 AM, an information was received in the police station about theft at F-57, Kamla Nagar round about and this information was reduced into Roznamcha vide DD No. 6A which is Ex.PW3/C (OSR).
This witness was cross-examined by Ld. defence counsel. However, no material contradiction could be noted and he clearly corroborated the story of the prosecution that after the incident taking place at about 1.00 AM, a call was made to the police as regards apprehension of the accused persons. This information was reduced into DD entry which is Ex.PW3/C.
25. PW5 Ct. Raghunath also deposed that on the day of the incident, he received a telephonic call from the duty officer at about 1.30 AM at night as regards house breaking and he immediately reached the spot where he found Ct. Dharmender, Ct. Virender and SI Ravi Kumar. He further deposed that he also found accused Mohd. Safikul (correctly identified by him) and other accused namely Mohd. Salam who was handed over to him for medical examination. After their medical examination, they were arrested. During his cross-examination, he denied the suggestion that he did not take part in the investigation.
26. PW6 Ct. Dharmender Kumar also corroborated the testimony of PW3 HC Rajender Singh and stated that he came back to the spot after getting the case registered and handed over the copy of FIR alongwith rukka to SI Ranvir Singh. He further identified his signature on FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 12 / 17 the seizure memo of screwdriver, broken locks which were seized vide Ex.PW1/B, bearing my signature at point B and also identified his signature on the arrest memo and personal search memo of accused Safikul.
This witness was also cross-examined by Ld. defence counsel. However no material contradiction could be noted in his testimony.
27. Corroborating the story of the prosecution, PW7 Ct. Virender also deposed that he alongwith SI Ravi Kumar and Ct. Dharmender reached the spot and correctly identified the accused Safikul who was present alongwith his associate namely Mohd. Salam (Juvenile). The testimony of the above mentioned police officials has been further corroborated by PW8 SI Ranvir Singh who prepared site plan which is Ex.PW8/A at the instance of the complainant and who took the articles of house breaking into his possession vide memo Ex.PW1/B bearing his signature at point C. He deposed as regards the recording of statement of various witnesses and the investigation carried out in detail.
28. PW9 SI Ravi Kumar also deposed that on the day of incident he took both the accused Safikul and JCL to Hindu Rao Hospital for their medical examination.
29. Thus, it is clear that all the above mentioned police officials have corroborated the testimony of the public witnesses and the story of the prosecution.
FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 13 / 1730. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
31. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 14 / 17 presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
32. Thus, it is clear that the case of the prosecution has been established beyond reasonable doubt. It has been established that the accused Safikul alongwith co-accused (JCL) committed the office of house-breaking at night armed with equipments of house-breaking such as screwdriver, chhaini etc. and broke the locks of the shutter of the shop of complainant for committing theft of jewellery articles lying in the shop. However, before they could do so, the complainant was awakened due to the noise heard by him and both the accused persons and his associate were caught on the spot alongwith equipments of house-breaking and the broken locks. Thus, it is clear that accused Safikul had committed the offence of house-breaking by night and had attempted to commit theft in FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 15 / 17 the shop of the complainant which was used for custody of jewellery articles.
33. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 16 / 17 not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
34. As a cumulative effect of the above said discussion, it is clear that it has been adequately proved by the public as well as police witness that accused Safikul in furtherance of his common intention with co- accused (JCL) committed offences punishable under Section 457/380/511/34 IPC. Hence, accused Safikul deserves to be convicted of charges for the offence u/s 457/380/511/34 IPC levelled against him.
35. Ordered accordingly. Digitally signed by CHETNA CHETNA SINGH Announced in the open SINGH Date:
2018.06.27 Court on 26.06.2018 15:48:42 +0000 (Chetna Singh) Addl. Chief Metropolitan Magistrate Central/Tis Hazari Courts, Delhi/26.06.2018 FIR No. 202/10 State Vs. Safikul PS Roop Nagar Page No. 17 / 17