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17. As far as the offence punishable u/s 457 IPC is concerned, it is seen that the prosecution has not been able to bring any evidence to show that the Accused had taken any step to conceal his entry into the house of the Complainant and hence, the offence of lurking house trespass by night is not proved. However, from the testimony of PW-1, i.e. the Complainant it is clear that the Accused has entered into his premises without permission and had stolen his mobile phone. The photographs taken by the crime team also show that a certain part of the grill of the main door had been cut. In these circumstances, the Court is of the opinion that the prosecution has also been successful in proving that the Accused has committed the offence of house trespass in order to commit theft of the mobile phone, Ex. P1 (colly). The fact that the Accused was apprehended while taking the stolen mobile phone out of the community near gate no.8, coupled with the fact of recovery of vegetable cutting knife/U shaped saria from his possession creates a sequence of facts so closely connected in time and space that the only conclusion which can be drawn is to the effect that the Accused had made ingress into the house of the Complainant for committing the offence of theft. Since the chance print report has not been proved by the prosecution and no evidence has been led to show that the grill was cut using the saria or the knife, the offence of house breaking is not made out. However, the offence punishable u/s. 451 IPC i.e. of house trespass to commit offence of theft stands duly proved.

21. In the instant case, the discrepancy as to who took the Accused to the PS, the police officials, or the Complainant/PW-2 is not of much essence when the manner in which the offence has been committed and the identity of the offender and of the case property has duly been established.

22. Qua the offence u/s 382 IPC it is seen that the IO has not prepared the sketch memo of the knife/saria and hence, it cannot be opined beyond reasobale doubt that the Accused had kept the said articles with him in order to cause death, hurt, restraint, as the nature of the article cannot be ascertained. Further, as per PW-1, when he asked the Accused what he was doing there, the Accused ran away from there and did not show the knife or the saria to the Complainant. Accordingly, the ingredients of Section 382 IPC are not made out.

23. In view of the above said discussion, I am of the conclusion that the prosecution has been able to prove its case successfully beyond reasonable doubt against the Accused Nadeem Khan for the offence punishable under Sec.380 & Sec. 451 IPC. He is therefore convicted for the offence punishable u/s 380 & Sec. 451 IPC. Since the person committing the theft cannot be said to be the receiver of a stolen property, the Accused hence cannot be convicted for the offence punishable under section 411 IPC. Hence, he is acquitted of the offence u/s 411 IPC. Further, the prosecution has also failed to prove the ingredients of Section 382 IPC and hence, the Accused is acquitted of the offence u/s 382 IPC. Ordered accordingly.

Convicted : under Section 380 and 451 IPC.

Acquitted : under Section 411 and 382 IPC.

Announced in open court on 16.09.2023 in the presence of the Accused.

The judgment contains 17 pages and each page have been signed by the undersigned.

(TWINKLE CHAWLA) MM-05, South East District, Saket Courts, New Delhi, 16/09/2023