Delhi District CourtState vs . Javed Alam on 19 January, 2017IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
                WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. JAVED ALAM
FIR No. 467/07
PS: MOTI NAGAR
U/S: 457/380/34/411IPCJUDGMENTSr. no. of the case                                     :           412/2/10

New Case ID no.                                         :           68293/2016

Date of commission of offence :                                     29.07.2007

Date of institution of the case :                                   23.04.2008

Name of the complainant                                 :           Sh. Satya Prakash

Name of accused and address :                                       Javed Alam S/o Sh. Mohd.
                                                                    Abdul Kas R/o E-222,
                                                                    Kathputli Colony, Patel
                                                                    Nagar, Delhi.
Offence complained of or proved :                                   U/s 457/380/411/34IPCPlea of the accused                                     :           Pleaded not guilty

Final order                                             :           Convicted U/s 457/380/34IPCReserved for judgment on                                :           06.01.2017

Date of judgment                                        :           19.01.2017*******************************************************************************************************************************


BRIEF STATEMENT OF THE REASON FOR DECISION:THE FACTS:1.         Brief facts of the case are that the complainant Satya Prakash was
     sleeping in his house in the intervening night of 27.07.2009 alongwith
     his family. At around 02:00-02:30 AM, he heard some noise from
     drawing room of his house. On that he woke up and came to drawing
     room where he saw that three boys were present in the drawing room,
     who were committing theft of articles lying there. He immediately raised
     a hue and cry, on that all the three thieves including present accused
     Javed Alam started fleeing away from the spot. Complainant also
     chased them, on hearing the hue and cry the Chowkidar of the locality

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      also started chasing the accused presons. In the meantime, a PCR van
     also reached there. The complainant managed to apprehend the
     accused Javed Alam with the help of PCR staff and Chowkidar.However, his accomplish successfully fled away from the spot. Accused
     Javed Alam was found in possession of a stereo stolen from the house
     of the complainant. Accordingly, after the investigation, police filed the
     present charge sheet against the accused.2.        Complete set of copies were supplied to the accused. After hearing
     arguments, charges were framed against the accused to which he
     pleaded not guilty and claimed trial.MATERIAL EVIDENCE IN BRIEF:3.        The Prosecution in support of present case has examined following
     witnesses:-4.        PW-1 ASI Rishi Pal was the Duty Officer on 29.07.2007, who
     exhibited on record computer generated copy of FIR as Ex.PW1/A and
     endorsement on the rukka as Ex.PW1/B.5.        PW-2 HC Anand Swaroop was the MHC(M), who exhibited on
     record the relevant entry in register no.19 at serial no.2836/07 as
     Ex.PW2/A vide which the case property i.e. one music system make
     Sony was deposited in Malkhana. It is stated by him that on 17.08.2007
     the same was released on superdari to S.P. Rajpal by the order of
     Court.6.        PW-3 Sh. Satya Prakash Rajpal stated that on the intervening night
     of 27.07.2009, he was sleeping in bedroom of his house alongwith his
     family. It is stated that in between 02:00-02:30 AM, he heard some
     noise from drawing room of his house. On that he woke up, when he
     came to drawing room, he saw three boys were present in the drawing
     room, who were committing theft of articles lying there. It is stated that
     he immediately raised noise, on that all the three thieves including
     accused Javed Alam started running away. It is stated that he chased
     them and on hearing the noise the Chowkidar of his locality also started
     chasing them. In the meantime a PCR van also reached there and with

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      the help of PCR staff and Chowkidar, he managed to apprehend the
     accused. This witness correctly identified the accused. It is stated by
     him that his music system make Sony was recovered from the accused.
     It is stated that other two accomplices of the accused managed to run
     away. It is stated that the PCR official called for the local police and
     produced the accused as well as stolen articles i.e. Music System make
     Sony to IO. It is stated that IO recorded his statement, the same is
     Ex.PW3/A. It is stated that IO seized the music system vide memo
     Ex.PW3/B and got the FIR registered. It is stated that accused was
     arrested vide memo Ex.PW3/C and personal search of accused was
     conducted vide memo Ex.PW3/D. It is stated that accused also pointed
     out the place of commission of offence and pointing out memo to this
     effect is Ex.PW3/E. It is stated that he took the music system on
     superdari. The music system Sony with speaker is Ex.P1 (colly). In his
     cross examination he denied the suggestion that accused was not
     apprehended on the spot or that accused was falsely implicated in the
     present case. He also denied the suggestion that accused was lifted
     while returning from his job at Inderlok.7.        PW4 ASI Hari Kishan stated that in the intervening night of 28-
     29.07.2007, he was posted in PCR, West Zone and was on duty with
     PCR Van Power-17. It is stated that the PCR was stationed opposite fire
     station, Moti Nagar. At about 02:45 AM, he noticed three persons being
     chased by one person, who was shouting chor chor. It is stated that
     three persons were found running from Ganesh Market side towards
     Patel Nagar side. It is stated that out of those three persons, he
     apprehended the accused, accused was having one music system
     (Ex.P1) in his (accused) possession. This witness correctly identified
     the accused. It is stated that accused persons were being chased by a
     watchman and one another person. It is stated that after sometime local
     police reached there. It is stated that he handed over accused Javed
     Alam and the recovered music system to IO HC Avdesh Kumar, who
     seized the same vide memo Ex.PW3/B. It is stated that the two other
     accomplices managed to flee away. In his cross-examination it is stated


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      by him that he had left the spot at about 03.15 AM and in his presence
     only seizure memo was prepared. It is stated by him that IO recorded
     his statement at the spot. He denied the suggestion that accused has
     been falsely implicated in the present case.8.        PW6 ASI Avdesh Kumar stated that on 29.07.2007, on receipt of
     DD No.5A (Ex.PW6/A) regarding theft at H.No. B-27, Moti Nagar, Delhi,
     he alongwith Ct. Ram Phool reached at the place of occurrence. It is
     stated that at the spot officials of PCR van met him. The PCR officials
     had apprehended the accused. This witness correctly identified the
     accused. It is stated that the staff of PCR van handed over to him one
     stereo/music system. It is stated that the complainant namely
     Satyaprakash was also present at the spot and he recorded the
     statement of complainant which is Ex. PW3/A. It is stated that after
     endorsement on the same, tehrir/rukka was prepared and the same
     was handed over to Ct. Ram Phool, the rukka is Ex. PW6/B. It is stated
     that after registration of FIR Ct. Ram Phool returned at the spot along
     with original tehrir and copy of FIR which were handed over to him. It is
     stated that thereafter he prepared the site plan Ex. PW6/C. The music
     system was taken into possession vide seizure memo Ex.PW3/B and at
     the instance of accused, pointing out memo Ex.PW3/E was prepared. It
     is stated that accused was arrested vide memo Ex. PW3/E and
     personal search of accused was conducted vide memo Ex. PW3/D. It is
     stated that he recorded the disclosure statement of accused, which is
     mark X. It is stated that from the spot accused was removed to the
     hospital where he (accused) was medically examined and therefrom
     accused was taken to PS and put behind the bars. It is stated that
     during the investigation of the present case he recorded statement of
     witnesses and the present case file was handed over to concerned
     SHO for submitting the same in the Court.9.        PW-5 deposed on the same lines as that of PW-6 ASI Avdesh
     Kumar. In his cross-examination it is stated by him that he reached the
     spot along with IO on IO's motorcycle. It is stated that PCR Incharge
     had produced the accused as well as music system. It is stated by him


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     that apart from accused, PCR staff, two other persons one of whom was
    the complainant were present at the spot. He denied the suggestion
    that the accused was apprehended while he was returning from his job.10.       No other witness was left to be examined, hence, PE was closed.THE DEFENCE :11.       Statement of accused Javed Alam recorded U/s 313Cr.P.C,
    wherein he pleaded his innocence and stated that he has been falsely
    implicated in the present case. It is stated by the accused that he was
    going back to his home from work. Some persons were chasing some
    other shouting chor-chor. It is stated that he got apprehensive and also
    started running due to which he fell down in a pit hole dig by metro, he
    was apprehended from there, mercilessly beaten in the police station
    and was compelled by the police officials to confess for the crime, which
    he did not commit. Under the coercion he accepted commission of
    offence. It is stated that this is a false case. Accused Javed Alam opted
    not to lead defence evidence.THE ARGUMENTS:12.       Ld. APP for state has argued that witnesses have supported the
    prosecution and their testimony have remained unrebutted. That on a
    combined reading of testimonies of prosecution witnesses, offence
    under section U/s 457/380/411/34IPCare proved beyond reasonable
    doubt.13.       On the other hand, Ld. counsel for accused had stated that there is
    no legally sustainable evidence against the accused. It is also stated
    that nothing was recovered from the accused. The recovery was false
    and planted. It is stated that personal search memo of the accused was
    prepared at 05.30 AM hence, it cannot be said that he was
    apprehended from the spot. It is argued that signature of the eye
    witness not on any document. It is argued that accused has been
    falsely implicated in the present case while he was returning from his
    job and going to his house. It is stated that there are number of
    contradictions and improvement in the testimony of the complainant vis-FIR No. 467/07, PS Moti Nagar                                                    Page 5/10 
       a-vis his statement on the basis of which present case was registered.THE FINDINGS:Offence U/s 457/380/411/34IPC:14.       Arguments adduced by Ld. APP for State and Ld. Defence Counsel
      for the accused have been heard. Evidences and documents on record
      perused carefully.15.Section 457IPC prescribes punishment for lurking house trespass
      or house breaking by night in order to commit theft.16.       The ingredients to prove the offence punishable undersection 380IPC are as follows:-a).       That the accused had dishonestly taken the property.b).       That the property was movable.

c).       That the property was taken out of the possession of another
person/ complainant.

d).       That it was taken without the consent of that person/complainant.

e).       That there must be some moving of the property in order to
accomplish the taking of it.

f).       That the said property was taken out of any building, tent or vessel,which is used as a human dwelling or is used for the custody of property.17.       In the present case PW3 Sh. Satyaprakash Rajpal has categorically
      stated that he had seen the present accused along with two other
      persons in the drawing room of his house while committing theft at the
      dead of night i.e. around 02-02.30 AM. On raising hue and cry accused
      and his accomplices started fleeing away from the spot, however,
      complainant chased them. On hearing hue and cry of the complainant a
      watchman of the locality also started chasing the thieves, in the
      meantime a PCR van wherein ASI Hari Kishan (PW-4) was posted
      came there. With the efforts of complainant as well as PCR officials and
      chowkidar the present accused Javed Alam was apprehended,
      however, his two accomplices successfully fled away from the spot. It is


FIR No. 467/07, PS Moti Nagar                                                    Page 6/10 
     also stated that a sony stereo stolen from the house of the complainant
    was recovered from the accused.18.       PW3 Sh. Satyaprakash Rajpal and PW4 ASI Hari Kishan who was
    on PCR are the most material witnesses of the present case. They have
    fully supported the prosecution. PW3 categorically stated that accused
    was running away after committing theft in his house and he managed
    to apprehend him with the help of a PCR official. PW4 ASI Hari Kishan
    also stated that he was posted on PCR Van Power 17, he saw that
    three persons were being chased by two and the persons chasing were
    shouting 'chor chor'. On that he managed to apprehend one of the three
    thieves who was having in his possession a sony stereo stolen from the
    house of the complainant.19.       Even in his cross-examination PW-3 denied the suggestion that
    accused has been falsely implicated in the present case. PW4 also
    supported the case of prosecution despite cross-examination by Ld.
    Defence Counsel. Both of them denied the suggestion that accused
    was falsely implicated in the present case. The following facts show the
    truthfulness of the complainant:-i). In the present case the theft had taken place on 29.07.2007 at
    around 02.30 AM. The PCR call was made at 03.15 AM by PW4 ASI
    Hari Kishan who was on PCR. In the PCR call recorded at 03.15 AM it
    has been categorically stated that three thieves being chased by two
    persons out of them one of the thief has been apprehended.ii). The contention of Ld. defence counsel that signature of the
    complainant were not taken on all the documents prepared at the spot
    hence, case of prosecution is doubtful, is not a material one as
    signatures of the complainant are present on his complaint, seizure
    memo of the music system, personal search and arrest memo of the
    accused. Further,                  it   is     established           principle   of law   that   the
    complainant/victim shall not suffer due to the conduct of the IO and the
    accused shall not be allowed to take benefit of the faulty investigation of
    the IO. It has been held by the Hon'ble Supreme Court in case titled


FIR No. 467/07, PS Moti Nagar                                                           Page 7/10 
     asGanga Singh Vs. State of Madhya Pradesh(2013) 7 SCC 278
    that:"The settle position of law is that the prosecution
                          is required to establish the guilt of the accused
                          beyond reasonable doubt by adducing evidence.
                          Hence, if the prosecution in a given case adduces
                          evidence to establish the guilt of the accused
                          beyond reasonable doubt, the court cannot acquit
                          the accused on the ground that there are some
                          defects in the investigation, but if the defects in
                          the investigation are such as to cast a reasonable
                          doubt in the prosecution case, then of course the
                          accused is entitled to acquittal because of such
                          doubt."iii). The bald defence raised by the accused that he was returning from
    his job when he saw some persons were chasing some other shouting
    chor chor on that he got apprehensive and also started running due to
    which he fell down in a pit hole and was apprehended does not appear
    to be probable. There is nothing on record to suggest any enmity
    between the complainant and the accused due to which complainant
    PW-3 Satyaprakash who is a businessmen would falsely implicate the
    accused. The complainant has categorically identified the accused as
    the person who was present in his house, who was chased &
    apprehended by him and from whom his stereo was recovered. Thus,
    there is no possibility of mistaken identity.iv). The defence of the accused itself clarifies that he was apprehended
    from the place as stated in the prosecution story, further there is no
    reason to doubt the veracity of PW-3 Satyaprakash Rajpal.v). There is a categorical statement made by PW3 implicating the
    accused in present case, statement of PW3 is corroborated by
    testimony of PW4. There is no reason or motive for PW3 to falsely
    implicate the accused in the present case. The evidence of PW3 is
    natural and consistent and to the point.vi). Though, PW3 in his evidence has stated wrong date of the incident
    i.e. 27.07.2009, apparently, he could not tell the correct date due to
    lapse of time since the date of incident. However, his testimony was to


FIR No. 467/07, PS Moti Nagar                                                    Page 8/10 
     the point on all other aspects. Thus, due to this mistake his entire
    testimony cannot be thrown away.vii). In the statement of accused U/s 313Cr.P.C, nothing except bald
    denial has surfaced when the incriminating evidence aforesaid was put
    to the accused. All what was stated by the accused in his statement U/s
    313Cr.PCis that he is falsely implicated in the present case. However,
    the accused did not even try to prove the motive of such false
    implication. Absolutely nothing has come on record to discredit the
    testimony of PW3 and other PWs, hence, reliance can be placed on
    their testimony.viii).           The deposition of PW3 is fully supported from the evidence
    of PW4 ASI Hari Kishan (who was on PCR) as well as evidence of other
    police witnesses in relation to the time, date of the incident as well as
    other aspect. The argument that other public witnesses or the
    chowkidar were not joined in the investigation is not material. As it is
    settled law that conviction can be based on the testimony of a single
    witness or even of police witnesses and it is not necessary that in each
    and every case, public witnesses must be joined. In the case of
    Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as
    under:-"It is no doubt true that the prosecution has not been able
             to produce any independent witness to the incident that
             took place at the bus stand. There must have been
             several of such witnesses. But the prosecution case
             cannot be thrown out or doubted on that ground alone.
             Experience reminds us that civilized people are generally
             insensitive when a crime is committed even in their
             presence. They withdraw both from the victim and the
             vigilante. They keep themselves away from the Court
             unless it is inevitable. They think that crime like civil
             dispute is between two individuals or parties and they
             should not involve themselves. This kind of apathy of the
             general public is indeed unfortunate, but it is there
             everywhere whether in village life, towns or cities. One
             cannot ignore this handicap with which the investigating
             agency has to discharge its duties. The court, therefore,
             instead of doubting the prosecution case for want of
             independent witness must consider the broad spectrum of
             the prosecution version and then search for the nugget of

FIR No. 467/07, PS Moti Nagar                                                    Page 9/10 
              truth with due regard to probability if any, suggested by
             the accused."Further, it was held inPal Singh And Ors. vs State Of U.P.AIR 1979 SC 1116 that:"after the High Court had believed the eye witnesses
                 No. 1 and 2, and having found that their testimony was
                 absolutely credit worthy and truthful, it could not have
                 rejected the prosecution case merely because some of
                 the eye witnesses mentioned in the F.I.R. were not
                 examined."20.       In the case in hand, this Court found the testimony of PW3 Sh.
    Satyaprakash Rajpal absolutely credit worthy and truthful. Hence, on
    the basis of above stated evidence, in the considered opinion of this
    court the prosecution is able to prove on record beyond reasonable
    doubt that in the intervening night of 28-29.07.2007 accused was
    committing theft in the house of the complainant along with his two
    other accomplices who successfully fled away from the spot however,
    accused was arrested after a chase with the help of PCR official PW4
    ASI Hari Kishan and from whom stolen sony stereo of the complainant
    was recovered.21.         Thus, in the considered opinion of this Court, all the ingredients ofSection 457/380/34IPC are satisfied. As such accused Javed Alam S/o
    Sh. Mohd. Abdul Kas is convicted for the offence UnderSection
    457/380/34IPC. Since the accused has been convicted for commission
    of offence U/s 457/380/34IPC, the alternative charge for offence U/s
    411IPCwill not stand.22.       Copy of this judgment be given to the accused free of cost.ANNOUNCED IN THE OPEN                                                 (GAJENDER SINGH NAGAR)
COURT ON 19.01.2017                                                      MM-04 (WEST)/DELHIContaining 10 pages all signed by the presiding officer.(GAJENDER SINGH NAGAR)
                                                                       MM-04 (WEST)/DELHI


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