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The Indian Penal Code
State (Through Cbi) vs Santosh Kumar Singh on 17 October, 2006
Section 380 in The Indian Penal Code
Section 457 in The Indian Penal Code
Section 411 in The Indian Penal Code

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s.380
Delhi District Court 380
State vs Santok Singh U/S. 457/380/411 Ipc on 26 May, 2015
411
Author: Ms. Saumya Chauhan 457

380 411 ipc

IN THE COURT OF MS. SAUMYA CHAUHAN, 457/380
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI 380 ipc

indian penal code 380

State v. Santok Singh
FIR No. 684/07 section 457 cr.pc: punjab_haryana
PS Paschim Vihar section 380 ipc
U/s 380/457/411 IPC
section 380 of indian penal code

JUDGMENT 457, 380 ipc

s.457 ipc, 380 ipc

sec 380
C C No. : 111/2/08 section 380, 457 of i.p.c

457 ipc
Date of Institution : 04.06.2008
section 411 indian penal code

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.

State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 2 /10

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.

State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 3 /10

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.

State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 4 /10

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.

State vs Santok Singh U/s. 457/380/411 IPC FIR No. 684/07 7 /10

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