Delhi High Court
Shiv Kumar & Anr. vs State on 3 December, 2015
Author: Ashutosh Kumar
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 48/2015
Date of decision: 03.12.2015
SHIV KUMAR & ANR. ..... Petitioners
Through: Mr.Vikas Padora and
Mr.Vaibhav Aggarwal,
Advocates.
versus
STATE ..... Respondent
Through: Mr. M.P. Singh, APP.
SI Ravi Shankar, P.S. Saket
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
1. Shiv Kumar and Sanjay Kumar who are own brothers stand
convicted and sentenced for the offence under Section 454/34 of the
IPC to undergo RI for five years and fine of Rs.20,000/- by judgment
and order 17.12.2014 passed in Crl.Appeal No.18/2014 by the
Additional Sessions Judge/Saket District Courts, New Delhi in
connection with FIR No.118/2014 (P.S.Saket).
2. The petitioners were tried by the Court of Additional Chief
Metropolitan Magistrate for the offences under Sections 454/380/411
read with Section 34 of the IPC. The Trial Court acquitted the
petitioners of the offence under Sections 380/411 IPC but convicted
both of them under Section 454 read with Section 34 of the IPC and
sentenced them to undergo RI for seven years by judgment and order
dated 2.9.2014/10.9.2014.
3. The petitioners preferred an appeal against the aforesaid
conviction and sentence before the Additional Sessions Judge, Saket
Courts vide Crl.Appeal No.118/14. The Appellate Court while
maintaining the conviction under Sections 454/34 of the IPC modified
the sentence and reduced the same from RI for seven years to RI for
five years and also directed the petitioners to pay a compensation of
Rs.20,000/- each to the complainant.
4. The judgment of conviction by both the Courts below and the
sentence by the Appellate Court are under challenge in the present
revision petition.
5. Smt.Yash Laxmi Sharma (PW-2) had gone to temple on
24.02.2014. She returned to her house in Pushp Vihar after about half
an hour, only to find the main door of the house open. Shortly
thereafter, one person jumped from the balcony of her house and as a
result of that he was injured. The aforesaid person was identified as
petitioner No.2. Petitioner No.1 was found inside the house. He was
found to be carrying two iron rods. The house of Yash Laxmi Sharma
(PW-2) was found to have been completely ransacked. Valuables and
currency notes were found missing from the house. From the
possession of petitioner No.1, one note of Rs.1000/- denomination and
five notes of Rs.10/- denomination were found which he had
concealed in his right shoe.
6. An FIR (FIR No.118/14) was lodged under Sections
454/380/411 and 34 of the IPC against the petitioners in Saket police
station.
7. The prosecution has examined seven witnesses in order to bring
home charges against the petitioners for lurking house trespass, theft
and for being in possession of stolen property, knowing it to be stolen.
8. Smt.D.Anantha Lakshmi (PW-1) a neighbour of Smt.Yash
Laxmi Sharma (PW-2) has deposed before the Trial Court that on
24.02.2014, the house of PW-2 was ransacked. One of the miscreants
jumped from the balcony and after sometime police came there. She
has identified petitioner No.2 as the person who was found inside the
house. She could not, however, identify the other accused person.
9. Smt.Yash Laxmi Sharma (PW-2) has completely supported the
prosecution version and has stated that the person who was found
inside her house was carrying an iron rod. Broken lock of the house
was also found lying on the bed. Her personal belongings were found
to be missing. Some of the currency notes were found in the
possession of one of the accused persons and she has testified to the
fact that the police seized five currency notes of Rs.10/- denomination
(Ex.PW-2/C). She has proved the complaint (Ex.PW-2/D). She
correctly identified the petitioners in the dock. She has categorically
denied the suggestion that she has deposed before the Court falsely.
10. Constable Garib Ram (PW-3) was posted on emergency duty on
24.02.2014. He has stated that on receiving DD No.20A, he along with
Head Constable Mukesh Kumar (PW-7) went to the house of PW-2
and found that many persons had assembled there. Petitioner Sanjay
was surrounded by the members of the public. He has testified to the
fact that in a short while, PCR van came and Sanjay, petitioner No.2
was taken to AIIMS Trauma Centre. After medical examination, both
the petitioners were sent to the lock up. The aforesaid witness has also
stated that petitioner Sanjay had jumped from the balcony whereas
petitioner Shiv Kumar was found inside the house.
11. Lal Bahadur (PW-4), Head Constable Praveen (PW-5) and
Constable Jitender Singh (PW-6) have supported the prosecution
version and there is nothing in their deposition to discredit the
prosecution version.
12. Head Constable Mukesh Kumar (PW-7) has testified to the fact
that he along with Constable Garib Ram (PW-3) had gone to the house
of Smt.Yash Laxmi Sharma (PW-2). He has confirmed the fact that
the stolen currency notes were recovered from the possession of one
of the petitioners (Shiv Kumar).
13. In their 313 statements, the petitioners have only denied the
occurrence and have not offered any explanation as to why one of
them jumped from the balcony and the other was found in the house of
PW-2. The petitioners have miserably failed to explain the reason of
their presence in the house of petitioner No.2.
14. Learned counsel appearing on behalf of the petitioners has
assailed the judgments of conviction and sentence on the ground that
the version of witnesses are contradictory; there is delay in lodging of
the first information report; the photographs of the place of occurrence
have not been brought on record and that the seizure of iron rod and
broken lock is clouded in suspicion. Alternatively, it has been argued
that there is nothing on record to warrant conviction under Section 454
of the IPC. It has further been pointed out that the petitioners have not
been convicted under Section 380 of the Indian Penal Code and,
therefore, sentence of five years under Section 454 was not mandated.
15. The incident took place on 24.02.2014 between 10 and 11 AM.
Shortly thereafter, police reached the spot and the FIR was registered
on the same day at 3.20 PM. The contention of the petitioners that
there was a delay in lodging the FIR is not acceptable.
16. Minor contradictions in the deposition of PWs-1 & 2 will not
affect or discredit the foundation of the prosecution version.
17. The petitioners were caught at the spot.
18. The crime team ought to have been summoned but on that score
alone the prosecution case cannot be thrown aside. The Appellate
Court, though, is justified in observing that the investigation was
extremely lacklustre.
19. Learned counsel for the petitioners thereafter drew the attention
of the Court to the provisions of Section 454 of the IPC. Section 454
of the IPC reads as hereunder:-
"454. Whoever commits lurking house-trespass or
house breaking, 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 three years, and
shall also be liable to fine; and if the offence
intended to be committed is theft, the term of
imprisonment may be extended to ten years."
20. A plain reading of Section 454 would make it clear that in case
of lurking house trespass or house breaking in order to commit any
offence is punishable with an imprisonment for a term which may
extend to three years and fine and if the offence which is intended to
be committed is theft, the imprisonment may extend to ten years.
21. In the absence of any conviction under Section 380 of the IPC,
it is difficult to presume that the petitioners had entered the house of
PW-2 for the purposes of committing theft. Though the presence of an
outsider in the house of somebody does raise a suspicion about the
intention of those persons; nonetheless acquittal under Section 380 of
the IPC impresses upon this Court for reduction in the sentence
imposed upon the petitioners by the Appellate Court.
22. Considering the fact that the petitioners were found in the house
of petitioner No.2 after breaking the lock of the main door, their
conviction under Section 454 of the IPC is justified. No interference is
required with the judgment of conviction by both the Courts below.
23. Since the petitioners have been acquitted for the charge under
Section 380 IPC, the sentence of RI for five years awarded by the
Appellate Court is reduced to RI for a period of three years.
24. The quantum of fine imposed by the Appellate Court is not
required to be interfered with. The petitioners are required to pay the
fine which has been imposed on them by the Appellate Court.
25. Thus the revision petition is partly allowed. While maintaining
the conviction of the petitioners, the sentence has been reduced from
RI for five years to RI for three years.
26. Trial Court record be returned.
27. Two copies of the judgment be sent to the Superintendent of the
concerned jail for information, compliance and record.
Crl.M.B Nos.160-161/2015
1. In view of the petition having been partly allowed, no orders are
required to be passed in the instant applications.
2. Dismissed as infructuous.
DECEMBER 03, 2015 ASHUTOSH KUMAR, J
k
