Delhi District Court
State vs Mahesh on 2 April, 2026
Cr. Case No. 68/2020
STATE Vs. MAHESH
FIR No. 124/2018
PS Nabi Karim
Sections: 457/380/511 IPC
1
IN THE COURT OF DR. RAJ KUMAR SINGH
JUDICIAL MAGISTRATE FIRST CLASS-05
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Cr. Case No. 68/2020
STATE Vs. MAHESH
FIR No. 124/2018
PS Nabi Karim
Sections: 457/380/511 IPC
DLCT020003452020
JUDGMENT
(a) CIS No. 68/2020 (b) Date of offence 11.04.2018 c) Complainant Anil Kumar s/o. Sh. Sunni Lal (d) Accused Mahesh s/o. Sh. Inder Singh r/o. H.No. C-103, Chinnot Basti, Laxman Purim Nabi Karim, Delhi (e) Offence 457/380/511 IPC (f) Plea of accused Not pleaded guilty (g) Final Order Acquitted (h) Date of Institution 07.01.2020 (i) Date of arguments 02.04.2026 (j) Date of judgment 02.04.2026
1. The present case arose out of FIR No. 124/2018, PS Nabi Karim. The prosecution case, in substance, is that in the early hours of 11.04.2018, at about 3:50 AM to 4:00 AM, accused Mahesh allegedly entered House No. L-142, 1st Floor, Laxman Puri, Nabi Karim, Delhi, by way of the neighbouring Digitally RAJ signed KUMAR by RAJ SINGH KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 2 roof, with intention to commit theft. It is the case of the prosecution that complainant Anil Kumar, who was sleeping in the house, woke up on hearing some noise, found one boy inside the room, raised alarm, and thereafter, with the help of his brother Rajesh, apprehended the said person and handed him over to the police. On the basis of the complaint so made, rukka was prepared and the present FIR came to be registered.
2. After completion of investigation, charge sheet was filed before the Court. The record shows that cognizance was taken and the accused was summoned. Upon his appearance, copies of charge sheet and relied upon documents were supplied to him in compliance of Section 207 CrPC. Thereafter, after hearing both sides and upon consideration of the material on record, charge for offences under Sections 457 and 380/511 IPC was framed against the accused on 18.10.2022, to which he pleaded not guilty and claimed trial.
3. Before adverting to the evidence, it would be appropriate to notice the legal ingredients of the offences in question. To bring home the charge under Section 457 IPC, the prosecution was required to establish that the accused committed lurking house trespass by night or house breaking by night, and that such entry was with intent to commit an offence punishable with imprisonment, in the present case, theft. To establish the charge under Sections 380/511 IPC, the prosecution was required to prove that the accused, having Digitally RAJ signed KUMAR by RAJ SINGH KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 3 the intention to commit theft in a dwelling house, had proceeded beyond mere preparation and had done some act towards commission of theft, though the offence remained incomplete.
4. The burden throughout remained upon the prosecution to prove these ingredients beyond reasonable doubt. The accused is to be presumed innocent, and unless the evidence on record form a complete and reliable chain pointing only towards his guilt, no conviction may follow.
5. In order to discharge this burden, the prosecution examined three witnesses, namely PW1 Anil Kumar, PW2 Rajesh and PW3 Retd. ASI Sohanbir Singh. Certain formal documents, namely the factum of registration of FIR, certificate under Section 65B of the Indian Evidence Act, endorsement on rukka and GD No. 07A, were admitted by the accused under Section 294 CrPC and were exhibited as Ex. AD-1 to Ex. AD-4. In view of such admission, the corresponding formal witness was dropped. The remaining formal witness HC Paramjit Singh was not examined, and upon conclusion of the evidence of the material witnesses, prosecution evidence was closed, the Court observing that no fruitful purpose would be served by keeping the matter pending merely for examining a formal witness.
6. PW1 Anil Kumar, the complainant, deposed that he resided at the aforesaid address with his family. He stated that on 11.04.2018 he was sleeping in his house when he heard some RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 4 noise, woke up, and found one unknown person in his house. He further stated that he shouted, his brother also came, and they caught hold of that person and handed him over to police officials. He proved his statement given to the police as Ex. PW1/A. He also identified his signatures on the disclosure statement Ex. PW1/B, arrest memo Ex. PW1/C and personal search memo Ex. PW1/D. However, the witness specifically stated that he could not identify the accused present in Court due to lapse of time.
7. Since PW1 did not identify the accused, he was cross examined by the learned APP on the point of identity. Even when the accused was specifically pointed out to him in Court, PW1 failed to identify him. He denied the suggestion that he was deliberately not identifying the accused because he had been won over.
8. The testimony of PW1, thus, supports the prosecution only to the extent that some incident had occurred in the house in the night and an unknown person was apprehended and handed over to the police. However, on the crucial issue of identity of the accused, PW1 did not support the prosecution.
9. PW2 Rajesh, brother of the complainant, also deposed broadly on similar lines. He stated that he too was sleeping in the house, heard some noise, woke up, found an unknown person present in the house, and thereafter he and his brother caught hold of that person and handed him over to the police. He identified his signatures on the disclosure statement Ex.
Digitally RAJ signed KUMAR by RAJ SINGH KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 5 PW1/B, arrest memo Ex. PW1/C and personal search memo Ex. PW1/D. He also stated that the IO had recorded his statement.
10. Yet, like PW1, PW2 too stated that he could not identify the accused present in Court due to lapse of time. He was also put questions by the learned APP on the point of identity after the witness was permitted to be so questioned. Even then, upon the accused being pointed out towards him, PW2 failed to identify him. He denied the suggestion that he was deliberately not identifying the accused as he had been won over.
11. PW2, therefore, also supports the occurrence in a general sense, namely that an unknown person was found inside the house and was handed over to the police. However, he too failed to connect the accused before the Court with that alleged intruder.
12. PW3 Retd. ASI Sohanbir Singh was the Investigating Officer. He deposed that on 11.04.2018 he was posted as ASI at PS Nabi Karim and, on receipt of DD Entry No. 7, he along with HC Paramjeet reached House No. L-142, Laxman Puri, Nabi Karim, Delhi. He stated that he met complainant Anil Kumar, recorded his statement Ex. PW1/A, prepared rukka Ex. PW3/A, sent the rukka through HC Paramjeet for registration of FIR, and after registration of the FIR, received back the original rukka and computerized copy of FIR. He further stated that the complainant had already apprehended the Digitally RAJ signed KUMAR by RAJ SINGH KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 6 accused with the help of his brother and handed him over to him. He proved the site plan as Ex. PW3/B, and also proved arrest memo Ex. PW1/C, personal search memo Ex. PW1/D and disclosure statement Ex. PW1/B. He identified the accused present in Court.
13. In his cross examination, PW3 admitted that there was no CCTV footage of the incident. He further admitted that he was not an eye witness of the occurrence. He also admitted that he had not obtained the signatures of the complainant or his brother on the site plan prepared by him.
14. The evidence of PW3 proves the investigation steps undertaken by him after receipt of DD entry. It also proves that a person was handed over to him at the spot and that the accused before the Court was the same person who was arrested in this case. However, PW3 was not an eye witness to the actual occurrence. His deposition, therefore, cannot substitute the direct evidence of the complainant and his brother on the crucial question whether the accused was in fact the person who had entered the house with the requisite criminal intention.
15. After closure of prosecution evidence, statement of the accused under Section 313 CrPC read with Section 281 CrPC and Sections 316 and 351 BNSS was recorded. All incriminating circumstances were put to him. The accused claimed innocence, pleaded false implication and opted not to lead defence evidence.
RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 7
16. Final arguments were thereafter heard. Learned APP for the State argued that the testimony of PW1 and PW2 clearly established that an intruder was found inside the house in the dead of night and was apprehended at the spot. It was argued that the testimony of PW3 further corroborated the fact that the accused was handed over at the spot and was arrested therefrom. It was also submitted that the admitted documents, namely FIR, DD entry and endorsement on rukka, lent assurance to the prosecution version.
17. Per contra, learned defence counsel argued that the two material public witnesses, namely PW1 and PW2, did not identify the accused in Court and, therefore, the identity of the accused as the alleged intruder remained unproved. It was further submitted that there was no recovery of any stolen article, no evidence of any specific overt act showing attempt to commit theft, no independent public witness, no CCTV footage and no reliable material to prove the ingredients of the offences beyond reasonable doubt.
18. I have carefully considered the rival submissions and have meticulously gone through the entire record.
19. At the outset, it may be observed that there is no serious dispute that an incident was reported in the night intervening 10/11.04.2018 and that the police machinery was set into motion promptly. The admitted documents Ex. AD-1 to Ex. AD-4 do establish that FIR was registered on the basis of the rukka and that DD No. 07A had been recorded. Further, both Digitally RAJ signed KUMAR by RAJ SINGH KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 8 PW1 and PW2 have indeed deposed that an unknown person was found in the house at night and was handed over to the police. To that extent, the prosecution version receives support from the evidence on record.
20. However, the matter does not end there. The principal question is whether the prosecution has been able to prove, beyond reasonable doubt, that the person standing trial, namely accused Mahesh, was that very person, and further, whether his acts satisfy the ingredients of the offences under Sections 457 and 380/511 IPC.
21. On the issue of identity, the prosecution has faced a serious dent. PW1 Anil Kumar, the complainant himself, failed to identify the accused in Court. PW2 Rajesh, who according to the prosecution was the person who caught hold of the intruder, also failed to identify the accused in Court. This was not a case where the witnesses merely showed hesitation or gave an uncertain answer. Both of them categorically stated that they could not identify the accused due to lapse of time. Even when the accused was pointed out to them in Court, both failed to identify him.
22. It is true that the mere fact that a witness is declared hostile or does not support the prosecution in some respect does not result in effacement of his entire testimony. The Court can accept that part of the testimony which is found reliable and consistent with the record. Applying that principle, the statements of PW1 and PW2 can certainly be relied upon to RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 9 the extent that an incident of nocturnal intrusion did occur and that an unknown person was apprehended and handed over to police. But the difficulty remains that on the most vital aspect, namely that the accused before the Court was the same person, they did not support the prosecution at all.
23. In such circumstances, the prosecution sought to rely upon the testimony of the Investigating Officer PW3, who identified the accused in Court and stated that the complainant and Rajesh had handed over the accused to him. This Court is conscious that the testimony of a police witness is not to be discarded merely because of his official status. If otherwise reliable and trustworthy, it can be acted upon. However, in the facts of the present case, the testimony of PW3 cannot by itself cure the material deficiency left by PW1 and PW2.
24. PW3 admittedly was not an eye witness to the actual occurrence. He reached the spot after receipt of DD entry. What he knew about the occurrence was what was stated to him by the complainant. His identification of the accused in Court only establishes that the accused was the person arrested in the present case. It does not by itself prove that the accused was the same person who had entered the house with intent to commit theft, especially when both the natural witnesses to the occurrence have failed to identify him in Court.
25. The arrest memo, personal search memo and disclosure statement do bear the signatures of PW1 and PW2. However, RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 10 these documents were prepared by the police during investigation. Their proof cannot override the substantive failure of the public witnesses to identify the accused in Court. Criminal conviction cannot rest merely upon the fact that arrest documents were signed by witnesses, when those very witnesses do not identify the accused as the offender at trial.
26. The prosecution case also suffers from another significant weakness. For establishing the offence under Sections 380/511 IPC, it was incumbent upon the prosecution to show some act on the part of the accused directed towards commission of theft in the dwelling house. Mere presence of a person inside a house at night may undoubtedly raise suspicion. Yet, suspicion, however grave, cannot take the place of proof. In the present case, neither PW1 nor PW2 stated that the alleged intruder had touched, moved, collected or attempted to remove any specific article. No article was found in the hands or possession of the accused. No property was recovered. No attempt with respect to any identified movable property was spoken to by any witness.
27. The initial complaint contains the assertion that the accused had entered with intention to commit theft. But intention is a matter to be inferred from proved facts and surrounding circumstances. In the present case, beyond the bare allegation of presence of an unknown person inside the house, there is no reliable evidence of any overt act from which an attempt RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 11 to commit theft may safely be inferred beyond reasonable doubt.
28. Similarly, for the offence under Section 457 IPC, the prosecution was required to prove not merely presence inside the premises, but also that the accused had committed lurking house trespass by night or house breaking by night in order to commit an offence punishable with imprisonment. Even assuming the evidence of PW1 and PW2 is accepted regarding the occurrence of some intrusion in the house, the identity of the accused as the intruder remains unproved for the reasons already discussed. Once that link fails, the charge under Section 457 IPC cannot be said to have been established against the accused.
29. There are also certain investigative deficiencies which, though not necessarily fatal by themselves, assume significance in the factual matrix of the present case. There is no CCTV footage. No independent witness from the neighbourhood was joined, though the prosecution case itself is that entry was made through the neighbouring roof. The site plan Ex. PW3/B does not bear the signatures of the complainant or his brother. PW3 also admitted that he was not an eye witness. These factors render the prosecution case less assured, particularly when the two star witnesses have not identified the accused in Court.
30. The disclosure statement of the accused is of no real assistance to the prosecution. No recovery was effected RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 12 pursuant thereto. In absence of any discovery of fact flowing from the disclosure, the same does not provide substantive corroboration to the prosecution story.
31. It is equally important to note that there is no legal impediment in appreciating the testimony of PW1 and PW2 partly in favour of the prosecution and partly in favour of the accused. The Court is not bound to reject their evidence in toto merely because they did not support the prosecution fully. On a careful reading of their depositions, this Court finds that while they support the factum of some incident, their evidence does not complete the chain required for conviction of the accused.
32. The Court is also mindful that offences committed at night inside residential premises often occur in circumstances where independent witnesses may not be readily available. Yet, even in such cases, the prosecution must stand on the strength of its own evidence. Where the complainant and the only other material witness fail to identify the accused in Court, and there is no other convincing evidence to prove the identity and intention of the accused beyond reasonable doubt, the Court cannot fill the gaps by conjecture.
33. The standard of proof in a criminal trial is proof beyond reasonable doubt. The accused is entitled to benefit of every reasonable doubt arising from the evidence on record. In the present case, the doubt is neither fanciful nor artificial. It goes to the root of the prosecution case. The identity of the accused RAJ KUMAR SINGH Digitally signed by RAJ KUMAR SINGH Cr. Case No. 68/2020 STATE Vs. MAHESH FIR No. 124/2018 PS Nabi Karim Sections: 457/380/511 IPC 13 as the intruder remains unproved through direct evidence. The allegation of attempted theft also remains unsupported by any clear evidence of acts directed towards commission of theft. The prosecution version, therefore, falls short of the degree of certainty required for recording a conviction.
34. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that accused Mahesh committed lurking house trespass by night in the house in question with intention to commit theft, or that he attempted to commit theft of articles lying therein. The essential ingredients of the offences under Sections 457 and 380/511 IPC have not been proved against him.
35. Consequently, accused Mahesh S/o Sh. Inder Singh is acquitted of the offences punishable under Sections 457 and 380/511 IPC by extending to him the benefit of doubt.
36. Bail bonds, if any, shall remain in force for the period as required under law.
37. File be consigned to record room after due compliance.
38. Judgment be uploaded as per rules. Digitally RAJ signed by KUMAR RAJ Announced in open court SINGH KUMAR SINGH on 02.04.2026 (Dr. Raj Kumar Singh) Judicial Magistrate First Class-05/Central Delhi/02.04.2026 Note: This judgment contains 13 (Thirteen) pages and having my signature on each page. RAJ KUMAR Digitally SINGH signed by RAJ KUMAR SINGH (Dr. Raj Kumar Singh) Judicial Magistrate First Class-05/Central Delhi/02.04.2026