Delhi District Court
State vs . Suresh @ Mahesh on 10 September, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Suresh @ Mahesh
FIR NO: 380/00
P. S. Ambedkar Nagar
U/s 454/511 IPC
Unique ID no. 02403R0417872003
JUDGMENT
Sl. No. of the case : 300/2 (13.6.2003) Date of its institution : 9.12.2000 Name of the complainant : Sh. Pawan Gupta Date of Commission of offence : 30.9.2000 Name of the accused : Sh. Suresh @ Mahesh Offence complained of : Section 451 IPC Plea of accused : Not guilty Case reserved for orders : 5.9.2012 Date of judgment : 10.9.2012 Final Order : CONVICTED BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Suresh @ Mahesh upon the police report filed by P.S. Ambedkar Nagar u/s 454/511 Indian Penal Code, 1860 (for short IPC).
State Vs. Suresh @ Mahesh FIR no. 380/00
2. As per the prosecution's story on 30.9.2000 at about 3.30 pm at H.no. FI84, Madangir, New Delhi accused attempted to break the lock of the house to enter in the house with the intention to commit theft and was apprehended there and thereby committed an offence u/s 451 r/w Section 511 IPC.
3. After completing the formalities, charge sheet was filed against the accused and the accused was stated the substance of the offence committed by him to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined six witnesses.
5. PW 1 is HC Jaibir Singh who was the duty officer and proved the FIR as Ex.PW1/A upon a rukka Ex.PW1/B.
6. PW 2 is HC Jai Kishan who deposed that on 30.9.2000 on receipt of DD no.18, he alongwith SI Kalu Ram reached at the spot and recorded the statement of the complainant, prepared rukka and got the FIR registered. He also proved certain documents like seizure memo of iron road being Ex.PW2/A, arrest and personal search of accused vide memos Ex.PW2/B and Ex.PW2/C.
7. PW 3 is Ct. Ram Babu who proved the disclosure statement of the accused as Ex.PW3/A.
8. PW 4 is Sh. Pawan Gupta, complainant who deposed that on 30.9.2000, State Vs. Suresh @ Mahesh FIR no. 380/00 his family had gone to Chattarpur Mandir and when he returned around 33.30 pm to home saw that 3/4 boys were trying to break open the lock of the main gate of their house with iron rods. He raised voice 'chorchor'. Except one all succeeded to run away. Public persons gathered there and gave beatings to accused. Accused also gave beatings to a public person namely Manoj who sustained injuries over his eye. Someone informed the police. His statement Ex.PW4/A was recorded, iron rod was seized by the police vide memo Ex.PW2/A. Accused was arrested and his personal search was conducted vide memos Ex.PW2/C and Ex.PW2/B.
9. PW 5 is SI Kalu Ram who deposed that on 30.9.2000 on receipt of DD no. 18, he alongwith Ct. Jai Kishan reached at FI/84, Madangir where complainant Pawan Gupta met him and handed over the accused to him. He recorded statement of complainant Ex.PW4/A on which he made endorsement Ex.PW5/A. He got the case registered Ex.PW1/A, prepared site plan Ex.PW5/B, rod was seized vide memo Ex.PW2/A. Accused was arrested and his personal search was conducted vide memos Ex.PW2/B and Ex.PW2/C.
10. PW 6 is Sh. Manoj who deposed that he dID not remember anything regarding the present case as the case is too old. He became hostile and was cross examined by Ld. APP for the State.
State Vs. Suresh @ Mahesh FIR no. 380/00
11. This is the overall prosecution's evidence in this case.
12. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 (for short Cr.P.C) and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated and chose not to lead any defence evidence.
13. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
14. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
15. On the other hand, it has been argued by counsel for accused person that there is no documentary or oral evidence against the accused to convict him.
16. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
17. Section 451 IPC is similar to sections 449 and 450. It provides punishment for house trespass committed with intent to commit an offence punishable with State Vs. Suresh @ Mahesh FIR no. 380/00 imprisonment. But before convicting one under section 451 IPC, specific finding as to which offence the trespassing accused intended to commit is necessary. In Emperor v. J.P Henezie, 10 CrlLJ 410, it was held that the conviction under section 451, cannot be maintained unless there is an express finding as to the nature of the offence which the accused intended to commit as the latter is a substantial ingredient of an offence under section 451 IPC.
18. Now what is to be seen is whether from the evidence and material on record, prosecution has been able to bring the case within the province of section 451 IPC. PW 4 Pawan Gupta is the complainant and one of the eye witnesses whose deposition reads as under:
"On 30.09.2000 our family had gone to Chhatarpur Mandir and when we returned around 3.003.30 pm to home saw that 34 boys were trying to break open the lock of the main gate of our house with iron rods. After seeing this I raised voice 'chor chor'. Except one all succeeded to run away. Accused present in the court today was apprehended (correctly identified). Public persons gathered there and gave beatings to accused....."
19. Another witness cited by the prosecution as eye witness is PW 6 Manoj who turned hostile during his evidence stating that he did not remember anything as the incident was too old. Rest all prosecution witnesses are formal/police witnesses. So from State Vs. Suresh @ Mahesh FIR no. 380/00 the aforesaid testimony, it is incomprehensible that what offence accused intended to commit had he been able to successfully gain the entry in the house of the complainant. Even from the perusal of the F.I.R and other material which the prosecution has brought on record in support of the charge, it is not possible to figure out the offence which the accused intended to commit. In the personal search memo Ex PW2/C of the accused, no weapon or instrument is recovered from which it could have been extrapolated that he intended to commit any particular offence. Although it has come on record that one iron rod was seized with the help of which accused was trying to break open the lock of the door but prosecution failed to produce that iron rod during the trial. In view of this matter, I am of the view that section 451 IPC is not attracted against the accused and therefore accused cannot be convicted for the same.
20. But we cannot overlook the testimony of PW 4 Pawan Gupta who has categorically deposed that when he returned home around 33.30 pm, he saw accused along with some other persons trying to break open the lock of the main gate of his house with iron rod and when he shouted 'chor chor' all of them managed to flee away except accused Suresh who was nabbed and was eventually thrashed by public persons. PW 4 is the natural witness since the occurrence took place in front of his house. His testimony is reliable and worthy of credence. Although he was cross examined on behalf of the State Vs. Suresh @ Mahesh FIR no. 380/00 accused but nothing material came out of it which could advance the cause of the accused. PW 4 deposed that he had seen accused breaking the lock from iron rod. There was no suggestion that accused was not present on the scene of occurrence or that he did not try to break the lock of the door of the house of the complainant. There was no reason for the complainant to falsely implicate the accused.
21. The aforesaid act of the accused would certainly bring his case within the purview of section 442 IPC which is simple house trespass and which is punishable under section 448 IPC. House of the complainant or human dwelling is a building within the meaning of section 442 IPC and the act of the accused trying to break open the lock of the house of the complainant who is unknown to him is sufficient to impute intention upon him to commit an offence which is a prerequisite for branding the act as criminal trespass.
22. PW 1 Head Constable Jaibir Singh registered F.I.R no. 380/00 Ex PW1/A on the basis of rukka Ex PW1/B. PW 5 SI Kalu Ram recorded statement of the complainant Ex PW4/A, prepared the site plan Ex PW4/B, arrested the accused vide memo Ex PW2/B, his personal search was conducted vide memo Ex PW2/C and iron rod was seized vide memo Ex PW2/A. The testimony of the aforesaid witnesses remained unrefuted as also the testimony of other formal prosecution witnesses PW 2 and PW 3.
23. PW 6 Manoj was also cited as prosecution witness who turned hostile stating State Vs. Suresh @ Mahesh FIR no. 380/00 that he did not remember anything about this case as the case was too old. He was permitted to be cross examined by the learned public prosecutor but in the cross examination he failed to identify the accused and also denied certain aspects of the prosecution case. Now the question is whether the unfavourable testimony of PW 6 will dent the case of the prosecution or not. It is not uncommon that witnesses turn hostile for myriad reasons but in that case it is the duty of the court to carefully analyse the evidence and reach a conclusion whether the evidence brought on record even of the hostile witnesses would be sufficient to bring home the commission of the crime. The Apex Court in Sheikh Zakir v. State of Bihar, A.I.R 1983 SC 911 has held that it is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding the accused guilty if there is otherwise acceptable evidence in support of the conviction.
24. In the instant case, I opine that even though PW 6 turned hostile but that would not dent the case of the prosecution for the reason that PW 4 Pawan Gupta is the natural eye witness as already discussed and there is no impediment to place reliance on his testimony. His testimony has specifically pointed out towards the guilt of the accused and there is no ground of throwing out his testimony just because PW 6 has resiled from his statement. Moreover, we cannot lose sight of the fact that testimony of PW 6 has been recorded almost 11 years after the date of the incident and he himself has stated in the State Vs. Suresh @ Mahesh FIR no. 380/00 initial part of his examination that due to passage of time he did not remember anything. So it is not unusual for PW 6 having not supported the case of the prosecution.
25. In statement under section 313 Cr.P.C, accused has merely denied the evidence put to him and offered no explanation in his defence.In Trimukh Maroti Kirkan v. State of Maharashtra 2006 (10) SCC 681, the Supreme Court has held as under:
"21 In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind.The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete....."
26. The evidence of material witness PW 4 Pawan Gupta clearly establishes that accused was trying to break open the lock of his house and was apprehended eventually. There is no reason why he would falsely implicate the accused. It is not the stand of the accused that he was having animosity with him and had falsely implicated him.
27. Now embarking upon another aspect and that is attempt to commit any offence provided in section 511 IPC. Since in the present case, there is a specific deposition of PW 4 that when he was about to reach his home, he saw accused along with other persons was trying to break open the lock and when he shouted, all other persons fled State Vs. Suresh @ Mahesh FIR no. 380/00 away but the accused was caught, therefore it can be said that at the time when accused was seen and caught he had not gained entrance into the said house and therefore he will be liable for attempt to commit house trespass for which he was charged.
28. Considering the overall evidence on record, although prosecution has not been able to bring the case of the accused within the province of section 451 r/w 511 IPC but from the evidence on record, section 448 r/w 511 IPC is attracted against the accused which stands proved beyond reasonable doubt. Deposition of almost all the material witnesses have not been challenged or demolished in the cross examination. Therefore, accused Suresh stands convicted for the offence under section 448 r/w 511 of IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 10.9.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Suresh @ Mahesh FIR no. 380/00