Delhi District Court
State vs Sunil on 29 October, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE03 (SOUTH
EAST), SAKET COURTS, NEW DELHI
Presided by: Ms. Akanksha Garg
State Vs.Sunil
FIR No.108/2014
Police Station : H. N.Din
Under Section :380/457/511 IPC
Date of institution : 26.04.2014
Date of pronouncement : 29.10.2021
JUDGEMENT
a) Serial number of the case 89337/2016
b) Date of commission of offence 14.03.2014
c) Name of the complainant Om Prakash
d) Name, parentage and address of Sh. Sunil
the accused persons S/o Mukesh
R/o H.No.2/115, Trilockpuri,
New Delhi.
e) Offence complained of Section 457/380/511 IPC.
f) Plea of the accused persons Pleaded not guilty
g) Final order Acquitted u/s 380/511 IPC and
convicted u/s 457 IPC.
h) Date of final order 29.10.2021
State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 1/9
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, it is the case of the prosecution that on 14.03.2014 at about 4.00AM at post office JungpuraB, Pratap Market, New Delhi within the jurisdiction of PS H.N.Din, accused Sunil committed lurking house trespass by night with an intention to commit theft and also attempted to commit theft in the post office and accused was apprehended at the spot and thereby committed an offence punishable u/s 457/380/511 IPC.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 12.05.2014 passed by Ld. Predecessor of this Court, charge of accusation for offence punishable u/s 457/380/511 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3. The prosecution, in order to prove its case against the accused, has examined 7 witnesses, whose testimonies in brief are as follows:
(i) PW1 Om Prakash has deposed that on 14.03.2014 at about 4.00AM, he heard noise of opening of shutter so he came out of his house and saw that the shutter of post office was half open. He raised alarm on which accused was inside the post office tried to ran away but he fell the shutter down and locked and shutter from outside and rang upon on 100 number. PCR came on spot. IO had opened the shutter after opening the lock and they had taken out accused Sunil vide statement is ExPW1/A. Accused was arrested and his personal search was conducted vide memo ExPW1/B and ExPW1/C bearing signature at point A. (ii)PW2 Girdhari Lal has deposed that he received a call in the morning around
3.45PM from his peon Devender Singh informing that the theft took place in the State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 2/9 post office. When he reached the post office the neighbour Om Prakash informed that he had put the shutter down and the thief was apprehended . He also stated that the thief had been taken to the PS prior to reaching of the spot. He further deposed that nothing was missing from the post office and he did not see the accused entering or coming out of the post office.
(iii)PW3 SI Sajan Kumar has deposed that on 14.03.2014, he was posted at mobile crime team South East. On that day, in the early morning, he was called by SI Mahinder Singh at Jungpura B, post office where attempt of theft was made by some thief. He visited the scene of crime and tried to lift chance print but no finger print or chance print was found. Ct. Mahesh photographed the scene in his presence. He prepared inspection report and handed over to the IO. The report is ExPW3/A bearing his signature at point A. (iv)PW4 Ct. Nan Babu has deposed that on the intervening night of 13.03.2014 and 14.03.2014, he was posted at PS H.N.Din as constable. He was on emergency duty from 8.00PM to 8.00AM.ASI Mahender Singh received call regarding entry of one thief in post office Jangpura. He alongwith IO reached at the spot where they came to know from the public persons there that one thief has entered the post office and was present inside. IO pulled up the shutter of post office . One person tried to run away after coming out from the post office. He also fell on road while trying to flee away and we apprehended him. Accused Sunil was apprehended by them. IO conducted the proceedings at the spot. IO called the officials of post office and recorded their statements. IO had also found one broken lock and one cutter at the spot which was seized vide memo already Ex PW2/A. IO recorded statement of complainant and prepared rukka. Rukka was handed over to him for registration of FIR. He went to PS and got the FIR registered. He returned to the spot with copy of FIR and rukka was handed over State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 3/9 to the IO. IO had seized the cutter and lock after sealing it in a pullanda with the seal of MK. IO arrested the accused and conducted his personal search vide memo ExPW1/B and ExPW1/C. The witnesss has identified the locks. The same is ExP1(colly).
(v)PW5 Ct. Mahesh has deposed that on 14.03.2014 he was posted mobile Crime Team. A call received regarding theft. He was he photographer in the crime team. He reached to the spot I.e shop no.2526 , Pratap Mkt. Post office, JangpuraB where he took four photographs of the spot, the same are ExPH1 to PH4.
(vi)PW6 SI Mahender has deposed that on 14.03.2014, he was posted at PS H.N.Din, on that day, he was on night emergency duty alongwith Ct.Nan Babu. On that day, at about 4.00AM, he had received a PCR call regarding apprehension of a thief. As per DD no.7A, he alongwith Ct. Nan Babu reached at the spot i.e Pratap Market, post offie JangpuraB where they met with complainant Om Prakash and PCR officials. Complainant narrated about the incident. The Shutter of post office was closed. Accused tried to flee away from the inside of post office. Accused immediately with the help of other staff was apprehended from the spot whose name was later on disclosed as Sunil. He recorded statement of complainant. The same is ExPW1/A. He prepared rukka vide ExPW6/A. He also informed the post master of the said post office about the incident. Upon which crime team and post master reached at the spot. The post master namely Girdhari lal checked the almirah of the office. He stated that all articles and cash was intact. The seizure memo is ExPW6/B. He interrogated the accused and arrested him and conducted his personal search vide memo ExPW1/B and Ex PW1/C. IO recorded his disclosure statement which is ExPW6/C. He prepared site plan which is ExPW6/D. State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 4/9 (vii)PW7 HC Radhey Lal has deposed that on 14.03.2014, he was posted at PS H.N.Din as HC. On that day, he was duty officer and his duty hours were from 12.00AM (mig night) to 8.00AM. On that day, Ct. Nan Babu handed over original rukka to him for registration of FIR vide EXPW6/A. He made endorsement over rukka at point B. Copy of FIR is ExPW7/A(OSR). He received information from HC Kuldeep regarding the apprehension of thief and the same was written by him in DD no.7A. DD NO.7A is ExPW7/B. After examination of abovesaid witnesses, PE was closed.
STATEMENT / DEFENCE OF THE ACCUSED
4. In his examination under Section 313 CrPC., the accused denied the entire evidence put to him and he is deposed that he is innocent and it was rather another person namely Sanjay who committed the offence while accused was present on the road at the time of incident and the accused has chosen not to lead defence evidence.
ARGUMENTS
5. It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
6. Per contra Ld. Defence Counsel has argued that no incriminating material has come on the record against the accused persons and the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that the accused has been falsely implicated in this case and there are material contradiction in the testimony of prosecution witnesses.
State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 5/9 ANALYSIS AND FINDINGS
7. I have heard Ld. APP for the State and the Ld. counsel for the accused at length and perused the record carefully. Before proceeding further it would be trite to recapitulate the legal position of offences that the accused has been charged with.
Section 457 IPC provides "Whoever commits lurking housetrespass by night, or housebreaking 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."
. In order to prove the culpability of the accused u/s 457 IPC, the prosecution is required to prove the following ingredients:
(i) That the accused committed lurking trespass by night or housebreaking by night;
(ii) That the housetrespass or housebreaking was in order to commit an offence punishable with imprisonment.
Section 380 IPC "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"
8. The star witnesses of the prosecution i.e the complainant who was examined as PW1 and the PW2 ie the postmaster supported the case of the prosecution. PW1 not only identified the accused person as the one who trespassed the post office but also identified the cutter that was used to break the locks of post office which was recovered from the possession of the accused person at the time of his arrest. The testimony of PW1 is further corroborated by the testimony of PW2 and State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 6/9 other police witnesses. The accused person was arrested from the spot only and the complainant admitted his signatures on the arrest memo and personal search memo.
09. As far as contention of Ld. Defence Counsel that there is contradiction in the testimony of PW1 ie. the complainant and PW2 the postmaster with respect to the time of incidence and the presence of public witnesses at the spot, this court is of the opinion that it is not so material as to discard or look upon his testimony with suspicion. Moreover, the time difference in question is merely a span of 30 45 minutes and PW2 has otherwise corroborated the testimony of PW1. Human memory tends to fade with time and the witness can not be expected to narrate an incidence with utmost precision. Some improvements/contradictions may creep in due to fading of memory with lapse of time. These minor contradictions should not be given undue importance unless they are so glaring so as to destroy the confidence in the witness.
10. It has been held by the Hon'ble Supreme Court in Jamal Mirza v. State reported in 2012 II AD (Delhi) 366.
"While appreciating the testimonies of witnesses, it was necessary that the Courts be realistic in their expectations from witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory, the power to register events and recall the details. It was to be the totality of evidence on record and its credibility that should eventually determine whether the prosecution was able to prove the charge against the Appellants or not and slight discrepancies which did not shake the basic version of the witnesses should not be given undue weightage or importance to dislodge the prosecution's case.
State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 7/9 Since the testimonies of all the witnesses established, beyond doubt, the presence and specific role of each of the accused at the time and place of occurrence and their participation in the commission of the offence and since no illwill or ulterior motive could be imputed to the witnesses in their cross examination or anything material be elicited to disbelieve the facts deposed by them, it was held that there was no illegality or irregularity in the findings recorded by the Trial Court basing conviction of the Appellants on the evidence as provided by the prosecution witnesses as minor contradictions or discrepancies in the statements of prosecution witnesses were bound to occur since they were recorded after lapse of a long time."
11. In the instant case there is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. Presence of the accused persons was noted by the complainant at about 4.00AM. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to build up a continuous link. In his statement U/s. 313 Cr.P.C the accused gave evasive answers and could not sufficiently explain the reasons for his presence at the spot at the wee hours of the day.
12.The contentions of the Ld. Defence counsel that no public person as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. In the instant case apart from the complainant, a public witness PW2 who was the postmaster has also deposed.
13. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 8/9 is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
14. The witnesses herein have remained consistent and corroborated each other. There is absolutely no material on record to show that prosecution witnesses had any reason or motive to falsely implicate the accused.
CONCLUSION
15. In view of the above discussion, I am of the considered view that the prosecution has been able to prove the case against the accused beyond reasonable doubt u/s 457 IPC. However, so far as, charge u/s 380/511 is concerned, I am of the opinion that nothing incriminating whatsoever has been brought on record in order to establish an offence of attempt to theft. None of the witnesses has deposed upon the factum of theft. In fact, the complainant himself who had found the accused at the place of incidence and locked him inside in order to be apprehended by the police has not deposed upon the question of theft. Moreover, it has very clearly appeared in the testimony of PW2 i.e the postmaster that he had noticed that nothing was missing from the post office, neither had been moved to that effect. Therefore, accused stands acquitted for a charge u/s 380/511 IPC and stands convicted u/s 457 IPC.
Digitally signed by AKANKSHA AKANKSHA GARG
Announced in open Court on 29.10.2021 GARG Date: 2021.10.29
15:11:33 +0530
(Akanksha Garg)
MM03 (SouthEast),
Saket Courts, New Delhi
State vs. Sunil FIR No.108/2014 PS H.N.Din Page no. 9/9