IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI
State v. Santok Singh
FIR No. 684/07
PS Paschim Vihar
U/s 380/457/411 IPC
JUDGMENT
C C No. : 111/2/08
Date of Institution : 04.06.2008
Date of Commission of Offence : 10.09.2007
Name of the complainant : Ramesh Ahuja
S/o Lal Chand
R/o House No. 154, Bhera
Enclave, Paschim Vihar, Delhi
Name & address of the accused : Santok Singh
S/o Hakim Singh
R/o B-44, B-Block, GTB Colony
Rohini, Sector-23, Delhi
Offence complained of : U/s 457/380/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 22.05.2015
Date of announcing of judgment : 26.05.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this statement the court shall decide the present matter u/s 457/380/411 IPC.
State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 1 /10
2. The briefly stated prosecution story is that on the intervening night of 10.09.2007 & 11.09.2007 in between 12.30 am to 5.00 am, a theft had taken place at Sanatan Dharam Mandir, Bhera Enclave, Paschim Vihar. Eight chattra, five mukut, one chand silver, one gold nath, various articles of silver coated gold polish, cash from gullack and mobile phone of two pandits were found to have been stolen. Information was given to the police. FIR was lodged and Investigation was carried out. During investigation, the accused Santok Singh was arrested on the basis of secret information. One mobile make Nokia was seized from his possession which allegedly belongs to the complainant. The accused had given the disclosure statement that the said mobile phone was stolen by his associate Sonu and had given it to him for selling. They had intended to divide the sale amount so obtained amongst themselves. Thus, accused is alleged to have committed an offence punishable u/s 457/380/411 IPC.
3. The charge sheet was filed against the accused in the court. Documents were supplied to him. Thereafter, charge was framed against the accused under Section 457/380/411 IPC on 24.06.2011 by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined nine witnesses namely (1) Ramesh Ahuja (2) Sunil Gainda (3) Vasudev Shukla (4) Arjun Prasad (5) ASI Suresh Kumar (6) Ct. Satish (7) Rajender Tiwari (8) ASI Ram Chander (9) Ct. Inder Kumar.
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5. PW-1 Ramesh Ahuja has deposed that in the year 2007 at about 5.00 am, one sewadar of Sanatan Dharam Mandir namely Shuklaji approached him and informed him that one nath, eight Chattars, one chand of Bhole Shankar, two mobile phones, five mukuts and cash have been stolen by some one. He informed the police. Police recorded his statement which is Ex.PW1/A. Police had prepared the site plan at his instance which is Mark A.
6. PW-2 Sunil Gainda is a General Secretary of the said temple. He deposed that in September 2007 he had received a telephonic call from the Mandir and informed about the theft by breaking of grill of the hall on the first floor. He immediately reached the Mandir. He has further corroborated the testimony of PW-1. None of these witnesses was cross examined by the accused.
7. PW-3 Vasudev Shukla deposed that he had been residing at the Mandir as priest since 1998. He deposed that on 09.10.2007 he had closed all the doors of the Mandir at about 11.00 pm. He along with Arjun Shukla and Rajender Tiwari was sleeping on the varandah of the temple. In the morning, some persons came and knocked the door of the Mandir. He checked his mobile but could not find the same. He deposed that when he removed the curtains from the idols of Lord Shiva, Lord Krishna and Goddess Durga, he found that the silver mukuts of all idols were stolen. One gullak was also missing. They went to the house of Pradhan and informed him about the theft. One mobile phone duly sealed with the seal of RG was produced by the MHC (M) which the witness correctly identified as his mobile phone. Mobile is Ex.P1.
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8. In the cross examination, this witness admitted that he had not given any proof of the ownership/ bill regarding the said Nokia Phone. He again stated that he could not remember whether any proof was given to the IO or not. He stated that he had seen his mobile phone for the first time in the court after the incident of theft. He admitted that he had not seen any person committing the theft. He also admitted that he was never told about the recovery of his mobile phone by the police. He stated that the police had taken the photographs of the Mandir after the incident.
9. PW-4 Arjun Prasad has corroborated the testimony of PW-3. He has deposed that his mobile phone was also missing. In the cross examination, this witness had also admitted that he had not given any bill of the mobile nor had he seen any person committing the theft in question.
10.PW-5 ASI Suresh Kumar has deposed that on 10.09.2007 he was posted at PP Mianwali Nagar. On that day, at about 5.30 am, DD No.6 was received on the basis of which he along with ASI Ram Gopal had gone to Sanatan Dharam Mandir. There they met Ramesh Ahuja. IO recorded his statement and prepared rukka and handed it over to the witness. The witness got the FIR registered and returned back to the spot and handed over the copy of FIR and original rukka to the IO. He further deposed that IO called the members of Crime Team and got the photographs clicked. In the cross examination, he stated that his statement was recorded after the registration of FIR on the same day.
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11.PW-6 Ct. Satish deposed that on 14.10.2007, he had joined the investigation along with ASI Ram Gopal. He deposed that at Peeragarhi, secret information was received by the IO that one person would come at Peera Garhi bus stand with a stolen mobile phone. The witness along with ASI Ram Gopal and secret informer reached at Peeragarhi bus stand. The accused came at the spot and on pointing out by the secret informer, he was apprehended. On cursory search, one mobile phone make Nokia was recovered from his possession which was seized vide memo Ex.PW6/A. Accused was arrested vide memo Ex.PW6/B and his personal search was conducted vide memo Ex.PW6/C. The disclosure statement of the accused is Ex.PW6/D. Witness correctly identified the mobile phone as Ex.P-1 as the one recovered from the possession of the accused.
12.In the cross examination, the witness could not recall whether the IO had made departure entry. He stated that IO had asked the public persons to join the investigation but none had agreed. He could not recall to whom the IO had handed over the seal after use. He could not recall to whom the information regarding arrest was given. He admitted that the IO had not recovered any document regarding the ownership of the recovered mobile phone in his presence. He denied the suggestion that the recovery has been planted upon the accused.
13.PW-7 Rajender Tiwari has corroborated the testimony of PW-3 and PW-4. In the cross examination, he stated that he was informed by Vasudev Shukla and State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 5 /10 Arjun Shukla that the mobile phones have been stolen. He could not recall whether any photographs of the place of incident were taken by the IO.
14.PW-8 Retired ASI Ram Chander deposed that he had recorded the present FIR on 10.09.2007 on the basis of rukka received from Ct. Satish. Copy of FIR is Ex.PW8/A and endorsement on rukka as Ex.PW8/B.
15.PW-9 Ct. Inder Kumar deposed that on 10.09.2007 he had received telephone call through wireless from PCR regarding theft near Sanatan Dharm Mandir. He reduced the said information in writing vide DD No.6 and handed it over to Ct. Satish. The said DD entry is Ex.PW9/A.
16.The Finger print Report was admitted by the accused under Section 294 Cr.P.C. Same is Ex. A1. Hence, the Finger Print Expert was not summoned for examination.
17.The PE was closed by the order of the court and statement of accused was recorded wherein the accused pleaded innocence and stated that he was falsely implicated in this case. Accused did not lead DE.
18.I have heard the arguments addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
19.Let us first discuss the provisions of law relevant for the purpose of this case. Section 457 IPC prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment. The essential ingredients to constitute the offence of house breaking at night are:-
State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 6 /10
1. The accused should have entered into the property which is in possession of another.
2. There should be an intention to commit an offence on part of the accused.
3. Such property should be any building / tent/ vessel used for human dwelling on place for worship or for custody of property.
4. Entry into the house should have been effected by the accused in any one of the six ways as defined under Section 454 IPC.
20.Section 380 IPC prescribes punishment for theft in a dwelling house. The theft is defined under Section 378 IPC. The essential ingredients to constitute an offence under Section 380 IPC are as follows:-
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
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21.The essential ingredients to prove an offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be ‘stolen property’ i.e it should have been transfered by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property.
22.It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
23.In the case at hand, there is no eye witness who had seen the accused breaking into the Mandir or committing the alleged theft. There are no photographs of the spot nor the IO had seized the broken grills of the temple. Also, the report of the Finger Expert Ex. A1 is of no use for the prosecution. As per the report, no opinion could be expressed on the finger prints on the gullak State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 8 /10 as the prints are partial and smudged and there were not sufficient number of ridge details. The finger prints on the spectacle case remained unidentified. Hence, the court is of the view that no offence of committing house breaking and theft has been proved by the prosecution against the accused.
24.Now the question before the court is whether the accused was found in possession of stolen mobile phone while having knowledge that it was stolen. IO has not seized the original bill of the said mobile phone. A copy of the phone bill in the name of Vasudev Shukla is on record. However, the same has not been put to any of the witnesses or PW-3 during his examination in chief nor is there any seizure memo regarding seizure of the bill. No IMEI number has been told by PW-3 nor the same was compared by the prosecution with the stolen mobile phone to establish the identity of the said mobile phone.
25.Also, no public persons were joined in the investigation by the IO at the time of recovery of mobile phone. In “Roop Chand v. State of Haryana” reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of “Pradeep Narayana V. State of Maharashtra” AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of “Kuldeep Singh V. State of Haryana” 2004(4) RCR 103 and “Passi @ Prakash V. State of Haryana“
State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 9 /10 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
26.From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. Hence, the very recovery of the mobile phone from the accused is doubtful.
27.In view of the above discussion, the court of the view that prosecution has failed to prove that the accused had committed house breaking by night on 10.09.2007 at Sanatan Dharam Mandir, Bhera Enclave and committed theft of gold and jewellery articles and cash from the temple. Prosecution has further failed to prove beyond reasonable doubt that the accused was found in possession of stolen mobile phone. Hence, the charges against the accused has not been proved.
28.The court is of the considered view that prosecution has not been able to prove the guilt of the accused and failed to prove its case beyond reasonable doubt. Accordingly, accused Santok Singh is acquitted under Section 457/380/411 IPC.
29.As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount.
Announced today in the open Court
26th May 2015 (SAUMYA CHAUHAN)
MM-07 (West) THC, Delhi
State vs Santok Singh U/s. 457/380/411 IPC
FIR No. 684/07 10 /10