IN THE COURT OF MS.

AMBIKA SINGH:METROPOLITAN MAGISTRATE-06

CENTRAL DISTRICT: TIS HAZARI COURTS
DELHI
FIR No. 565/15
State V/s Mohd. Imran
U/S : 457/380/411 IPC
PS : Sadar Bazar
C/N. 366/02
U. ID No. 02401R0626432015
Date of Institution

17.11.2015

Date of commission of offence

22.09.2015

Name of the complainant

Mohd. Junaid

Name and address of accused

Mohd. Imran, S/o Mohd. Mustaq,

R/o W-5, Majdoor Kalyan Camp,
Okhla IInd, New Delhi.

Offence charged with

Section 457/380/411 IPC

Plea of guilt

Pleaded not guilty

Final Order

Convicted

Date on which order has been reserved:

20.05.2016

Date of pronouncement of Judgment

07.06.2016

JUDGMENT
1

The Prosecution has filed the present case against the accused Mohd.

Imran, S/o Mohd. Mustaq, u/s 457/380/411 IPC.

2

In brief, the case of the prosecution is that on 22.09.2015, at about 5.00

AM at H. No. 7786/15A, 4th Floor, Katra Atma Ram, Sadar Bazar, Delhi, within
the jurisdiction of PS Sadar Bazar, the accused had committed the offence of
lurking house trespass/house breaking in the night by entering in the said house,
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having taken precaution to conceal such trespass, for the purpose of committing
theft and thereby, he committed the offence punishable u/s 457 IPC. Further, on
the said date, time and place, he committed the theft of mobile phone make
MICROMAX from a dwelling house of complainant Junaid by taking the same
without his consent and thereby, he committed the offence punishable u/s 380
IPC. Further, on the said date, time and place, he was apprehended and the said
mobile phone was recovered from his possession which was received or
retained by him, knowing or having the reasons to believe the same to be the
stolen property and thereby, he committed the offence punishable u/s 411 IPC.
3.

Thereafter on completion of investigation, the charge sheet was filed

against the accused and a charge for the offence punishable u/s 457/380/411
IPC was framed against the accused on 01.12.2015, to which accused pleaded
not guilty and claimed trial.
4

To prove its case, the prosecution has examined seven witnesses.

PW-1 WHC Jyoti deposed that on 22.09.2015 she was posted at PS

Sadar Bazar, Delhi and was working as duty officer. On that day, at about 9.35
AM, HC Rajiv produced before him one rukka, on the basis of which he recorded
the FIR of the present case and proved the copy of FIR as Exh. PW1/A. He also
made an endorsement on the rukka which is Exh. PW1/B and also issued the
certificate u/s 65B of Indian Evidene Act which he proved as Exh. PW1/C.
6

PW2 Sh. Juniad deposed that on 22.09.2015 at about 5.00 AM, he was

sleeping in his room. He felt some vibration in his pillow due to which he woke
up and saw that accused, had taken out his mobile phone which was under his
pillow, make Micromax of black colour. The keypad of said phone was partly
broken. The accused was trying to escape from there alongwith his mobile. He
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raised alarm 'chor chor'. His friend Tasgir, who was also sleeping in the said
room also awake and they both chased the accused and apprehended him with
the mobile. Thereafter, they took accused to police station and informed the
police official about the incident and handed over the accused to them with case
property. During interrogation accused disclosed his name as Mohd. Imran. His
Mobile phone was having SIM of number 8471096062. The said mobile was
recovered from the possession of accused. Police recorded his statement Ex.
PW2/A bearing his signature at point A. He had shown the place of incident to
the police and police official prepared site plan Exh. PW2/B at his instance. The
police had also prepared the pullanda of recovered mobile phone and sealed it
with the seal of RT and taken into possession through seizure memo Ex. PW2/C
bearing his signature at point A. Accused was arrested and his personal search
was conducted vide arrest memo and personal search memo Ex PW2/D and
PW2/E respectively both bearing his signature at point A. Disclosure statement
of accused was also recorded which is Ex. PW2/F bearing his signature at point
A.

His statement was recorded by the police in this respect. He correctly

identified the accused and the case property as Exh. P-1 during his testimony.
7

PW3 Mohd. Tasveer deposed that on 22.09.2015, he alongwith Junaid

were sleeping in the room. On that day at about 5:00 AM, his room partner
Junaid awoke as he felt some sensation in his pillow. He also woke up and saw
that accused, had took out the mobile phone make Micromax of black colour
from under the pillow. The said mobile phone was of Junaid. After taking the said
mobile phone accused was tying to run away from there. On this, Junaid raised
alarm ' chor-chor' and they chased the accused and apprehended him inside the
room and said mobile phone was recovered from his possession. Thereafter,
they took the accused and recovered case property at PS Sadar Bazar and
handed over to the police officer. During interrogation, accused disclosed his
name as Mohd. Imran. IO prepared pulanda of recovered mobile phone and
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sealed it with the seal of RT. Police had recorded the statement of Junaid and
FIR was got registered. The said recovered mobile phone was taken into
possession through seizure memo already Exh. PW2/C bearing his signatures at
point B. Accused was arrested and his personal search was conducted vide
arrest memo and personal search memo already Ex. PW2/D and Ex. PW2/E
respectively both bearing his signatures at point B. He correctly identified the
accused and the case property as Exh P-1 during his testimony.
8

PW4 Const. Bhagwan Dass deposed that on 22.09.2015 he was posted

at PS Sadar Bazar. On that day, he was on patrolling duty in the area of Sadar
Bazar and had received an information through duty officer at about 9.35 AM
regarding the offence. Thereafter, he went to PS and duty officer handed over
him the copy of FIR and original rukka. Then, he went to the spot i.e Katra Atma
Ram, Sadar Bazar, where HC Rajiv met him and he handed over the copy of FIR
and original rukka to him.
9

PW-5 Const. Sanjay Kumar deposed that on 22.09.2015 he was posted at

PS Sadar Bazar and was on emergency duty. On that day, at about 8.30 AM on
the directions of IO, he alongwith Const. Balram went to Hindu Rao Hospital for
medical examination of accused Imran and thereafter, he alongwith Const.
Balram and accused went to the spot i.e 7786/15A, 4th Floor, Katra Atmaram,
where disclosure statement of accused was recorded by the IO which is already
Exh. PW2/F, bearing his signatures at point B.
10

PW6 HC Rajeev Kumar deposed that on 22.09.2015, he was posted at

PS Sadar Bazar.

On that day, he was present at PS Sadar Bazar , where

complainant Junaid alongwith Tasgir came and produced accused Imran

alongwith recovered mobile phone. Accused was having some injuries on his
person. Accused was sent to the hospital for medical examination by Ct. Sanjay
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and Ct. Balram and they were directed to produce the accused on the spot after
medical examination. He recorded the statement of complainant already Ex.
PW2/A bearing his signature at point B and made his endorsement on the same
bearing his signatures at point C and handed over the same to duty officer for
registration of FIR. He prepared pullanda of recovered mobile phone and sealed
it with the seal of RT. The pullanda was taken into possession through seizure
memo already Ex. PW2/C bearing his signatures at point C. Thereafter, he
alongwith complainant and his friend Tasgir went to the spot. At the instance of
the complainant site plan already Exh. PW2/B was prepared which bears his
signature at point B. Ct. Bhagwan Das reached at the spot alongwith copy of
FIR and original rukka and handed over the same to him. After sometime, Ct.
Sanjay and Ct. Balram also reached at the spot alongwith accused after medical
examination. He interrogated the accused Md. Imran and recorded his disclosure
statement already Ex. PW2/F bearing his signature at point C. Accused was
arrested and his personal search was conducted vide arrest memo and personal
search memo already Ex. PW2/D and PW2/E respectively bearing his signature
at point C.

He also recorded the statement of witnesses u/s 161 Cr. PC.

Thereafter, they reached at Tis Hazari court and produced the accused before
the court who was sent to J/C. The ossification test of Imran was got conducted
and report was obtained upon which doctor had opined the accused as major.
The address of accused was also got verified. The CDR and CAF of the mobile
number of the complainant was obtained and the SIM was found in the name of
Ms Nisha. He visited the address which was provided by the service provider
but Nisha was not found residing there.

He recorded the supplementary

statement of complainant in this regard, who informed that he had obtained this
SIM from his friend. He recorded the statement of witnesses u/s 161 Cr. PC.
After completing the investigation chargesheet was filed before the court. He
correctly identified the accused and the case property during his testimony.

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11

PW7 Dr. Devender deposed that on 04.11.2015, he was posted at Hindu

Rao Hospital as GDMO (Radiologist). On that day, bone age assessment and
physical and dental examination of Md. Imran was got conducted. On the basis
of assessment result, the approximate age of Md. Imran was opined as 21 to 22
years. He proved his detailed report in this regard as Ex. PW7/A bearing his
signature at point A.
12

After conclusion of prosecution evidence, statement of the accused u/s

313 r/w Section 281 Cr.PC was recorded by the court in which he has stated that
he is innocent and that he has been falsely implicated in the present case.
However, he has not led any evidence in his defence .
13

I have heard the arguments raised on behalf of the parties and have

gone through the record carefully. After going through the complete evidence
and records of this case, I am of the view that before reaching at any conclusion,
relevant Sections be reproduced herein below for ready reference:
457.
night

in

Lurking house-trespass or house-breaking by

order

to

commit

offence

punishable

with

imprisonment.- Whoever commits lurking house-trespass by

night, or house-breaking by night, in order to the committing of any
offence punishable with imprisonment, shall be punished with
imprisonment of either description for a term which may extend to
five years, and shall also be liable to fine; and, if the offence
intended to be committed is theft, the term of the imprisonment
may be extended to fourteen years.
380:

Theft in dwelling house, etc.- Whoever commits

theft in any building, tent or vessel, which building, tent or vessel is

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used as a human dwelling, or used for the custody of property,

shall be punished with imprisonment of either description for a
term which may extended to seven years, and shall also be liable
to fine.
411:

Dishonestly receiving stolen property.- Whoever

dishonestly receives or retains any stolen property, knowing or

having reason to believe the same to be stolen property, shall be
punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
14

To bring home the guilt of the accused, the prosecution has examined

PW2 Junaid and PW3 Mohd. Tasgir as the main eye-witnesses to the present
case. PW2 Sh. Junaid has deposed that on 22.09.2015 he was sleeping in his
room and about about 5.00 AM he felt some vibration in his pillow, due to which
he got awoken and saw that the accused present in the Court that day, had
taken out his mobile phone which was under his pillow, make Micromax of black
color, and was trying to escape from there. He raised alarm 'chor-chor'. His friend
Tasgir, who was also sleeping in the said room, also got awoken and they both
chased the accused and apprehended him with the mobile. They took the
accused to police station. During interrogation, the accused disclosed his name
as Mohd. Imran and mobile phone was recovered from the possession of
accused. He also identified the accused and the case property i.e Mobile phone
bearing IMEI No. 911229503181862 and 911229508181867 as Exh. P-1.
15

PW3 Mohd. Tasgir also corroborated the testimony of PW2 Junaid and

deposed that on 22.09.2015 at about 5.00 AM his partner Junaid had woken up
and he also got woken up and saw that the accused present in the Court that
day, had taken out the mobile phone make Micromax of black color from under
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State Vs Mohd. Imran

PS Sadar Bazar

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the pillow of Junaid and was trying to ran away from there. On this, Junaid raised
alarim of 'Chor- Chor' and they both chased the accused and apprehended him
inside the room itself. The said mobile phone was recovered from the
possession of the accused.
16

It is argued by the Ld defence counsel that the offence u/s 380 IPC is not

made out against the accused as the story of the prosecution is not reliable as
none has seen the accused actually committing the theft of mobile phone and
that in his cross-examination PW3 Mohd. Tasgir has admitted that he did not
seen the accused while he was entering into the said room. He also admitted
that he did not see the accused when he was removing the mobile phone.
17

PW2 Junaid and PW3 Mohd. Tasgir have deposed emphatically on oath

that the accused was found in the room with the mobile phone, which belonged
to PW2 Junaid.
18

In the statement of accused recorded u/s 313 Cr.P.C, he has simply

refuted all the specific circumstances against him without offering any
explanation with regard to his non-involvement in the incident in question. It is
true that the prosecution is required to prove its case beyond reasonable doubt
but the provisions of Section 313 of the Code are not a mere formality or
purposeless.

They have a dual purpose to discharge, firstly, that the entire

material parts of the incriminating evidence should be put to the accused in

accordance with law and, secondly, to provide an opportunity to the accused to
explain his conduct or his version of the case. To provide this opportunity to the
accused is the mandatory duty of the Court. If the accused deliberately fails to
avail this opportunity, then the consequences in law have to follow, particularly
when it would be expected of the accused in the normal course of conduct to
disclose certain facts which may be within his personal knowledge and have a
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bearing on the case. The accused has taken the stand that all the PWs are
interested witnesses and their testimony cannot be believed. However,

no

motive has been brought on record as to why the PWs would falsely implicated
the accused. Absolutely nothing has been brought on record to discredit the
testimony of

the PWs. Therefore, reliance can

be placed upon

their

testimonies.
19

Further, FIR has been prompting registered ruling out any chances of

fabrication and embellishment.

20

In view of the testimony of eye witnesses, who have deposed

empathetically on oath that accused was found in the room with the stolen
mobile phone, the offences u/s 457/411 IPC are clearly proved against the
accused. However, offence u/s 380 IPC is not proved as no one has actually
seen the accused while committing the theft. PW2 has deposed that accused
had taken out the mobile phone, meaning thereby that he did not see the
accused removing the mobile phone. On the other hand, PW3 Mohd. Tasgir has
admitted that he did not see the accused removing the mobile phone.
21

Accordingly, in view of my aforesaid discussion, accused Mohd. Imran is

acquitted of the offence punishable u/s 380 IPC while convicted for the offences
punishable u/s 457/411 IPC.
Let him be heard on the point of sentence.
Announced in the open court
Today on 7th June, 2016
(Ambika Singh)
Metropolitan Magistrate-06(Central)
Tis Hazari Courts, Delhi

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