Delhi District Court
State vs Mahender on 7 March, 2025
State Vs. Mahender @ Jhai
IN THE COURT OF MS. PAYAL SINGAL,
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL
TIS HAZARI COURTS: DELHI
STATE vs. Mahender @Jhai
FIR NO. : 1188/2023
U/S : 380/457/511 IPC
PS : Burari
Cr. Case No. : 14981/2023
JUDGMENT
1. CNR No. : DLCT02-031344-2023
2. Date of Commission of the offence : 05.10.2023
3. The name of the complainant : Sh. Sunil Yadav
4. Name & parentage of accused : Mahender @ Jhai,
S/o Sh. Karan Singh
5. Offence complained off : 380/457/511 IPC
6. Plea of the accused person : Pleaded not guilty.
7. Final order : CONVICTION
Date of Institution : 30.11.2023
Date of Reservation : 22.02.2025
Date of Judgment : 07.03.2025
BRIEF FACTS:
1) Vide this judgment, I shall decide the fate of the abovementioned FIR which was registered on 05.10.2023 on the complaint of Sh. Sunil Yadav qua the commission of lurking house trespass or house breaking by committing Digitally signed FIR No. 1188/2023, PS Burari Page No. 1 of 14 by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:20:51 +0530 State Vs. Mahender @ Jhai criminal trespass into the house of his landlord i.e. House No. 123/8, Ground Floor, Gali No.15, Sant Nagar, Burari, Delhi on 05.10.2023 itself.
2) The brief case of the prosecution is that on 05.10.2023 at about 4.00 am at House No. 123/8, Ground Floor, Gali No.15, Sant Nagar, Burari, Delhi within the jurisdiction of PS Burari, the accused committed lurking house trespass or house breaking by committing criminal trespass into the house belonging to the landlord of complainant namely Sh.
Awadh Kishore by entering into the said house from its terrace for the purpose of attempting to commit theft and he was apprehended on the spot and thereby committed an offence punishable u/s 457/380/511 IPC.
3) After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 457/380/511 Indian Penal Code (hereinafter referred to as IPC) against the accused Mahender @ Jhaion 14.12.2023 to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.
PROSECUTION EVIDENCE
4) Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the Digitally FIR No. 1188/2023, PS Burari Page No. 2 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:08 +0530 State Vs. Mahender @ Jhai accused had admitted the copy of FIR No. 1188/2023 (Ex. AD1); endorsement made on rukka (Ex. AD2); Certificate U/s 65 B Indian Evidence Act (Ex. AD3) and DD No. 32 A dated 05.10.2023 vide which PCR qua the present incident was received (Ex. AD4) without admitting the contents of the said documents. Thus, the said witnesses were not summoned.
5) Accordingly, to bring home the guilt of the accused, the prosecution examined the remaining 05 witnesses in support of its case i.e. PW-1 Sh. Sunil Yadav i.e. the complainant, PW-2 Sh. Parkash Pandey i.e. the co-
occupant of the house at the time of the alleged offence with the complainant, PW-3 HC Charan Singh, PW-4 Sh. Avadh Kishore Pandey i.e. the owner of the house where the alleged offence was committed and PW-5 ASI Arvind Kumar. Now, the testimonies of all these witnesses shall be discussed in detail one by one.
6) PW-1 Sh. Sunil Yadav deposed that on 05.10.2023, he was residing at H. No. 123/8, Gali No. 15, Sant Nagar as a tenant alongwith his friend Shiv Prakash when at about 4.00 am, the door of the room where he was sleeping with his friend was opened. PW-1 stated that he suddenly woke up and saw that one person was checking his bag after opening the same and that after seeing that, he woke up his friend and with the help of him, he apprehended the said person/accused. Thereafter, PW-1 stated that information regarding the apprehension of the accused was conveyed to their landlord namely Avdesh Kumar Pandey who FIR No. 1188/2023, PS Burari Page No. 3 of 14 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:18 +0530 State Vs. Mahender @ Jhai thereafter, dialed 112 number. PW-1 further stated that upon inquiry, the person who are apprehended disclosed his name as Mahender and he seemed to be under the influence of alcohol or some other such material and two mobile phones were also recovered from his possession which were stolen from some other place. Then, PW-1 deposed that after 20 minutes, police officials reached at the spot and he produced the accused before the police officials and narrated the whole incident to them whereafter, the police officials recorded his statement, Ex. PW1/A; IO made site plan at his instance, Ex. PW1/B; IO made inquiry with the accused and prepared documents pertaining to his arrest i.e. arrest memo, personal search and disclosure statement, Ex. PW1/C, Ex.PW1/D and Ex. PW1/E respectively; IO also seized mobile phones which was recovered from the possession of the accused vide seizure memo. The said witness correctly identified the accused in the court.
7) PW-2 Sh. Shiv Parkash Pandey deposed that on
05.10.2023, he was residing at H. No. 123/8, Gali No. 15, Sant Nagar as a tenant alongwith his friend Sunil Yadav i.e. PW-1 when at about 4.00 am, the door of the room situated on the ground floor where he was sleeping with his friend was opened. PW-2 stated that suddenly, his friend Sunil woke up and saw that one person was checking his bag after opening the same and that after seeing that, his friend woke him up and they both apprehended the said person/accused. Thereafter, PW-2 Digitally FIR No. 1188/2023, PS Burari Page No. 4 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:30 +0530 State Vs. Mahender @ Jhai stated that they gave the information regarding the apprehension of the accused to their landlord i.e. Sh. Avdesh Kumar Pandey who thereafter, dialed 112 number. PW-2 further stated that upon inquiry by them, the person, who seemed to be under the influence of alcohol, disclosed his name as Mahender and two other mobile phones were also recovered from his possession. Then, PW-2 deposed that after about 20 minutes, the police officials reached at the spot and they produced the accused before the police officials and narrated the whole incident to them whereafter, the police officials made inquiries from the accused and prepared documents pertaining to his arrest i.e. arrest memo, personal search, Ex. PW1/C and Ex.PW1/D respectively; IO also seized mobile phones which was recovered from the possession of the accused vide seizure memo. The said witness correctly identified the accused in the court.
8) PW-3 HC Charan Singh deposed that on 05.11.2023, he was posted as HC at PS Burari and on that day, a DD entry 32 A was received in the PS whereafter, he alongwith ASI Arvind Kumar went to the spot i.e. H. No. 123/8, Gali No. 15, Sant Nagar, Burari. PW-3 stated that at the spot, they met one Awadh Kishore Pandey, Sunil Yadav and Shiv Parkash Pandey who stated to have called qua the commission of theft by one person namely Mahender. PW-
3 deposed that thereafter, ASI Arvind Kumar made inquiry from all the witnesses and recorded the statement of Sunil Yadav and that ASI Arvind Kumar prepared the tehrir on Digitally FIR No. 1188/2023, PS Burari Page No. 5 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:40 +0530 State Vs. Mahender @ Jhai the basis of the same and handed over the same to him for the purpose of registration of FIR. Accordingly, PW-3 stated that he went to the PS and got the present FIR registered and returned to the spot alongwith original tehrir and copy of FIR where two mobile phones (one is Redmi Note 10 pro and one Redmi MI) were recovered from the possession of the accused person. PW-3 further deposed that IO seized the mobile phones vide seizure memo Ex. PW1/F, accused Mahender was arrested vide arrest memo Ex.PW1/C, IO also made personal search of the accused vide personal search memo Ex. PW/D and IO also recorded the disclosure statement of the accused which is Ex.PW1/E. Thereafter, PW-3 stated that they returned to the PS where IO recorded his statement.
9) PW-4 Sh. Awadh Kishore Pandey deposed that he is the owner of H.No. 123/8, Gali No.15, Main Market, Sant Nagar, Burari, Delhi and is residing at its 2nd floor. PW-4 deposed that he had given the ground floor of afore-said premises on rent to Sunil Yadav and Shiv Kumar Pandey and on 05.10.2023, he received a call from the said tenants regarding apprehension of one person who was trying to steal at ground floor of afore-said premises. PW-4 then deposed that thereafter, he reached at the spot and made a call at 100 number and police reached at the spot and person apprehended was handed over to IO. The said witness was cross-examined on behalf of the State on the identity of the accused but despite specifically pointing out at the accused in court, the said witness failed to identify Digitally FIR No. 1188/2023, PS Burari Page No. 6 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:50 +0530 State Vs. Mahender @ Jhai him.
10) PW-5 ASI Arvind Tomar deposed that on 05.10.2023, he was posted as ASI at PS Burari and on that day, he was performing night emergency duty when DD entry 32 A was marked to him whereafter, he alongwith HC Charan Singh went to the spot i.e. Gali no. 17, Main Market, Sant Nagar, Burari. PW-5 deposed that at the ground floor of the said house, they met with the caller i.e. Awadh Kishore Pandey and two tenant persons Sunil Yadav and Shiv Parkash Pandey who produced one person namely Mahender who had entered in their house for the purpose of committing the theft. Thereafter, PW-5 deposed that he recorded the statement of Sunil Yadav Ex. PW1/A and on the basis of the said statement, he prepared tehrir Ex. PW5/A and handed over the same to HC Charan for the registration of FIR who left the spot and went to PS Burari. Then, PW-5 deposed that he prepared site plan at the instance of complainant Ex. PW1/B and that in the mean time, HC Charan returned to the spot and handed over the computerized copy of FIR and Tehrir to him. PW-
5 further stated that two mobile phones were also recovered from the possession of the accused, but they did not belong to the complainant and as they were found stolen in another FIR, both the said phones were seized by him. Then, PW-5 stated that he made inquiry with the accused and arrested him vide arrest memo Ex. PWI/C, he also conducted the personal search of the accused vide personal search memo which is Ex.PW 1/D, he also FIR No. 1188/2023, PS Burari Page No. 7 of 14 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:21:58 +0530 State Vs. Mahender @ Jhai recorded the disclosure statement of the accused which is already Ex.PW1/E and after medical examination of the accused, he was produced before the concerned court on the same date and sent him into the JC. Lastly, PW-5 stated that after completion of all the formalities, he filed challan. The said witness correctly identified the accused.
11) All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.
STATEMENT OF THE ACCUSED:
12) After recording the testimony of all the witnesses, the PE was closed and thereafter, the statement of the accused person was recorded u/s 313 Cr.P.C. r/w S.281 Cr.P.C on 11.02.2025. In the said statement, the accused person denied all the allegations levelled against him and stated that he had been falsely implicated in the present case. The accused person further stated that he did not want to lead any DE and accordingly, the matter came up for final arguments.
FINAL ARGUMENTS:
13) Arguments on behalf of the accused were advanced by ld. LAC Sh. Satish Kumar and by Sh. Rohit Lohat, Ld. APP on behalf of the State.
14) It was argued by Ld. APP for the state that the state
FIR No. 1188/2023, PS Burari Page No. 8 of 14 Digitally
signed by
PAYAL
PAYAL SINGAL
SINGAL Date:
2025.03.07
16:22:11
+0530
State Vs. Mahender @ Jhai
had successfully proved its case beyond all reasonable doubts that the accused person had entered the house of the complainant illegally at night and tried to commit theft and was guilty of the offences u/s 457/380/511 IPC. It was argued that the testimony of PW-1 and PW-2, who had apprehended the accused while in the said act and had also correctly identified the accused in court was sufficient to prove the allegations against the accused as no material contradictions had been brought in their testimony. It was further argued that the testimony of the said PWs was duly corroborated by PW-4 who joined them at the spot after the apprehension of the accused and two police witnesses and accordingly, it was argued that the accused be convicted for offences u/s 457/380/511 IPC.
15) Per contra, it was argued by the Ld. LAC for the accused person that the accused person was completely innocent and had been falsely implicated in the case. It was further argued that PW-4 who allegedly was present at the spot had failed to identify the accused and the persons/neighbours whose mobiles phones had allegedly been recovered from the possession of the accused had not been made witnesses in the present case. It was further argued that there is no explanation as to why the statements of the said public person/s, if any, were not recorded. Accordingly, it was argued that the accused had been falsely implicated in the present case and he was Digitally FIR No. 1188/2023, PS Burari Page No. 9 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:22:21 +0530 State Vs. Mahender @ Jhai bound to be acquitted of all charges levelled against him.
16) Arguments from both the sides have been heard and the record has been carefully perused.
REASONS FOR JUDGMENT:
17) It is settled proposition of criminal jurisprudence that it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution case appears to be improbable or lacks credibility, the benefit of any and all doubt/s, necessarily has to go to the accused person/s.
18) Now, before proceeding further, it is relevant to note the bare provisions of law which are to govern the reasoning behind the decision of the present case.
"380. Theft in dwelling house, etc.--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."
"442. 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 "house- trespass".
"443. Lurking house-trespass.--Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
"445. House-breaking.--A person is said to commit "house- breaking" who commits house-trespass 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, FIR No. 1188/2023, PS Burari Page No. 10 of 14 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:22:33 +0530 State Vs. Mahender @ Jhai he quits the house or any part of it in any of such six ways, that is to say:--
First.--If he enters or quits through a passage made 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 house-trespass has opened, in order to the committing of the house-trespass 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 house-trespass, or in order to the quitting of the house after a house-trespass.
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 house-trespass. "457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house-trespass by night, or house-breaking 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."
"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1 [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2 [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
19) In the case at hand, it is the case of the prosecution that the accused entered the ground floor of the house of Digitally FIR No. 1188/2023, PS Burari Page No. 11 of 14 signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:22:46 +0530 State Vs. Mahender @ Jhai PW-4 which was being tenanted by PWs 1 and 2 at night with the intention to conceal the said entrance or broke open the locks of the said house and entered the said house at night with the purpose of committing theft but he was stopped from committing the said theft by the complainant/PWs 1 and 2 and while he was running away from the spot, he was apprehended by the complainant/PWs 1 and 2.
20) In the case at hand, the prosecution has examined three independent witnesses i.e. PW-1/ complainant/tenant of the house where theft was allegedly committed, PW-2/co-tenant of the house where theft was allegedly committed /person accompanying the complainant and PW-4/owner of the said house. Now, firstly coming to the testimonies of PWs 1 and 2, both the said witnesses have given exemplary testimony of the events that transpired on the night of the incident i.e. on 05.10.2023 starting from the time of the incident when complainant woke up to some sounds and saw the accused checking his bag, then him having woken up PW-2, both of them having apprehended the accused, conveying the information of the said apprehension to the landlord residing in the same house i.e. PW-4, PW-4 having arrived at the spot and calling 112 number, making inquiry from the accused and finding two mobile phones with him, the police having reached at the spot, them handing over the accused to the Digitally signed by FIR No. 1188/2023, PS Burari Page No. 12 of 14 PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:22:56 +0530 State Vs. Mahender @ Jhai police, then ultimately, the police making inquiries from them and conducting investigation and preparing documents at the spot. Furthermore, both the said witnesses have corroborated the testimony of each other and have also correctly identified the accused in court. Now, although both the said witnesses were cross- examined on behalf of the accused but no material contradictions could be brought in their testimonies and both the said witnesses stood the test of the cross- examination. Moreover, their testimonies is corroborated by PW-4 who also arrived at the spot and called the PCR. Although, the said witness failed to identify the accused in court but that does not bring into question his remaining testimony which fully corroborates the testimonies of PWs 1 and 2 regarding the events of that night.
21) At the same time, the testimonies of the two police witnesses as examined by the prosecution also corroborates the testimonies of the above discussed public witnesses and no material contradictions have been brought forth. In the given circumstances, the court is of the considered opinion that the testimonies of all the witnesses when taken together is very much sufficient to prove the allegations against the accused and leaves no iota of doubt that on 05.10.2023 at around 4 am, it was the accused who entered the Ground Floor of H. No. 123/8, Gali No.15, Main Market, Sant Nagar, Burari and tried to Digitally signed by PAYAL FIR No. 1188/2023, PS Burari Page No. 13 of 14 PAYAL SINGAL SINGAL Date:
2025.03.07 16:23:04 +0530 State Vs. Mahender @ Jhai commit theft.
22) In view of the aforesaid discussion, the court is of the opinion that as per the cardinal principle of criminal jurisprudence wherein an accused is presumed to be innocent until proven guilty beyond reasonable doubt, the burden of which never shifts and always lies upon the prosecution, in the case at hand, the prosecution has successfully discharged the said burden to prove the charges u/s 457/380/511 IPC beyond all reasonable doubts against the accused person.
23) Accordingly, accused Mahender @ Jhai stands convicted of the charges u/s 457/380/511 IPC.
24) Let the copy of judgment be supplied free of cost to the convict.
(Announced in open Court On 07.03.2025 ) (PAYAL SINGAL) JMFC-09/Central/THC 07.03.2025 The judgment contains 14 pages and all the pages bears my signatures.
(PAYAL SINGAL) JMFC-09/Central/THC 07.03.2025 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2025.03.07 16:23:13 +0530 FIR No. 1188/2023, PS Burari Page No. 14 of 14