Delhi District Court
State vs . Yasoda Devi on 16 March, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-04, DISTRICT
SOUTH EAST, SAKET COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Yasoda Devi
FIR No. 227/12
PS. Govind Puri
U/s. 447 IPC &
19/30/32 ASR Act
JUDGMENT
1) SI No. of the case : 623974/16
2) The date of commission of offence : 13.03.2012
3) The name of the complainant : Sh. Vikram Singh
4) The name & parentage of accused : Yasoda Devi
W/o late Sh.
Virender Pratap
5) Offence involved : Section 19/30/32 of
Ancient Monuments and
Archaeological Sites
and Remains Act,
1958,Section 188 of
Indian Penal Code &
447 of Indian Penal
Code.
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
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8) The date of such order : 16.03.2022
Date of Institution : 06.12.2012
Judgment reserved on : 16.03.2022
Judgment announced on : 16.03.2022
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated, the case of the prosecution is that on 13.03.2012 at around unknown time, at H.No. RZ-469/13B Tughlakabad Extension, New Delhi within the jurisdiction of PS Govind Puri, the accused Yashoda Devi was found carrying the unauthorized/illegal construction done in the prohibited area of Tughlakabad which falls within the area of a centrally protected monument. Accused also failed to stop the illegal/unauthorized construction and, failed to demolish the illegal construction which she had carried out at the above said premises. Accused further failed to comply the order of Central Government vide notification No. 4190 dated 28.06.1921 published in the gazette of India on 02.07.1921 and in addition to this accused also failed to comply the order of Hon'ble Supreme Court dated 06.03.2003 passed in the petition namely S.N.Bhardwaj Vs Archaeological Survey of India and Ors. Accused had also criminally trespassed by entering into the above said land with intent to commit an offence. The FIR was registered for the offence punishable u/s 447 Indian Penal Code (IPC) & 19/30/32 Ancient Monuments and Archaeological Sites and Remains Act, 1958, Act (AM & ASR Act).
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2. Upon completion of investigation, charge sheet U/s 447 IPC & 19/30/32 AM & ASR Act was filed on behalf of the IO and the accused was consequently summoned. Section 207 CrPC was complied with.
3. Charge U/s. 19/30/32 AM & ASR Act, 188 IPC and Section 447 IPC was framed against accused to which accused pleaded not guilty and claimed trial.
4. In order to establish its case prosecution has examined nine witnesses.
5. PW1 Sh. Deepak Kumar Bhardwaj is the Surveyor Grade-I, Archaeological Survey of India, Delhi Circle. He deposed that he was posted as Surveyor Grade-I in the office of Superintendent Archaeological Survey of India, Delhi Circle, INA, New Delhi. He further deposed that Incharge Archaeological Survey of India, Bahadur Chand/police official asked him to provide copy of site plan and the map alongwith handing over/taking over of the land to Archaeological Survey of India in the year 1995. He proved the site plan of Turghlakabad Fort as Ex.PW1/A and other documents as Mark Y (consisting 11 pages) and copy of aqs Shizra of Village Tughlakabad, Tehsil and District Delhi from year 1908-09 as Ex.PW1/B (OSR).
6. PW2 Sh. Vikram Singh, Foreman, Archaeological Survey of India, Sub-Division, Tughlakabad Fort, New Delhi, the complainant in this case. He deposed that on 13.03.2022, he was posted as Foreman when Shiv FIR No. 227/12 State Vs. Yashoda Devi Page no. 3 of 12 Kumar, Monument Attendant told him that one lady Yashoda was raising new construction in lace of the old construction of H.No. 469, Gali No. 13- B and at wall of Tughlakabad Fort. He deposed that The house No. 469 was located within 100 meter of the Fort where the construction was prohibited by Archaeological Survey of India.
7. PW3 Sh. Bahadur Chand, Conservative Assistant, ASI Department, Tuglakabad Fort, New Delhi deposed that on 22.08.2012 he handed over the documents related to the land of ASI Department to police officials which were seized vide seizure memo Ex.PW3/A. He further proved the documents viz. Copy of CWP No. 2193 and CWP No. 3798 of Delhi High Court, Notification of Chief Commissioner Delhi, documents of transfer of land, one map of land of ASI department and the judgment of Hon. Supreme Court in Civil Appeal No. 699/2005 (Ex.PW1 to Ex.P5 respectively).
8. PW4 Sh. Shiv Kumar, Samarak Parichar, ASI Tugalakabad, Sub- circle, New Delhi deposed that on 13.03.2012 when he was on duty he saw that in gali No. 13B, H.No. 469, a lady namely Yashoda Devi was constructing a new house by demolishing the earlier house. She was also demolishing the outer wall of the fort. That it which was illegal as no one can raise construction till 100 meters from the outer wall of the fort. He informed officer Mr. Vikram Singh. On re-examination he proved the photograph of the said construction as Ex.P6. He further deposed that the construction which was going on was adjacent to the outer wall of the fort.
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9. PW5 ASI Manoj Kumar deposed that on 03.05.2012 he was a Head constable posted at PS Govind Puri. On that day while he was serving as Duty officer from 8.00 AM to 4.00, at about 2.10 PM he received rukka from HC Jas Ram and recorded the same vide DD No.13A. He made endorsement on the same I.e. Ex.PW5/A. Thereafter he registered the FIR and proved the copy of same as Ex.PW5/B. After registration of FIR he handed over the original copy of tehrir and copy of FIR to HC Jas Ram for further investigation. He further proved the certificate U/s. 65B of Indian Evidence Act, 1872 in support of the said FIR as Ex.PW5/C.
10. PW6 HC Jasram is the IO of this case. He deposed that on 03.05.2012 he was posted as Hd. Constable at PS Govind Puri. On that day he received complaint from the Archaeological Department. On the basis of the said complaint, rukka was prepared and was handed over to Duty Officer. The Duty officer registered FIR and after registration of FIR the investigation was marked to him. During investigation he and lady Ct Saroj went to the spot. He took the photographs of the place of incident and prepared the site plan. He arrested accused Yashoda Devi and released her on bail. He gave notice U/s. 91 CrPC to the Archaeological Department and received documents from them. He seized the same vide seizure memo already Ex.PW3/A. He recorded the statement of witnesses U/s. 161 CrPC After completion of investigation he filed the chargsheet before the court. He correctly identified the accused present in the court. He identified the documents viz. Rukka Ex.PW6/A, site plan Ex.PW6/B, arrest memo of FIR No. 227/12 State Vs. Yashoda Devi Page no. 5 of 12 accused Yashoda Devi Ex.PW6/C and Notice U/s. 91 CrPC to archaeological department Ex.PW6/D. He further identified the photograph he had taken as Ex.P6 and the documents seized by him as Ex.P1 to P5.
11. PW7 ASI Sambhaji Rao deposed that on 10.06.2014 he was posted as Hd. Constable at PS Govind Puri. On that day further investigation was marked to him. He corresponded with the ASI and other agencies for the demarcation of property in question which is situated in Khasra No.505. For the same he gave notice U/s. 91 CrPC to the Archaeological Department which was done by Dhyani Consultants. He received the report/plan from Dhyani Consultants. After completion of further investigation he filed the supplementary chargesheet. He proved the documents viz. Notice U/s. 91 CrPC as Ex.PW7/A and report/plan Ex.PW7/B.
12. PW8 Sh. Purnchandra Dhyani, Survey Consultant, (Proprietor of Dhyani Consultants) deposed that he was a summoned witness. He was Civil Engineer and working as Land surveyor as an expert for land demarcation since the year 1991. He further deposed that he had prepared the report/plan already Ex.PW7/B regarding property in question situated in Khasra No.505 mentioned at point 8. He also deposed that the property in dispute was adjacent to the boundary of Tughlakabad Fort which was very well mentioned in his said report/plan. The distance between the outer boundary wall of TKD fort and property in dispute was near about 15 meters and which comes under the prohibited area.
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13. PW9 is Sh. Deepak Kumaar Bhardwaj, Surveyor Grade-I, Record Keeper, Archaeological Survey of India, Delhi Circle. He produced the certified copies of order of Hon'ble High Court dated 17.05.2017, order of Hon'ble High Court dated 15.02.2017 and judgment of Hon'ble Supreme Court in Civil Appeal No. 699/2005. He proved the copies of same as Ex.PW9/A,Ex.PW9/B and Ex.PW9/C respectively. (Certified copies of all the documents seen and returned).
14. Upon completion of P.E., statement of accused u/s 313 Cr.PC was then recorded. The accused denied the allegations and pleaded innocence. She had chosen to lead her defence evidence and examined two witnesses in her defence.
15. DW1 Sh. Narender Singh, R/o. RZ-217B, Gali No.17, Tughlakabad Extension, New Delhi-19. He deposed that he was residing at above said address since his childhood. His mother and accused Yashoda Devi were friends from his childhood. Since his childhood he used to visit the house of accused. He further deposed that accused had raised the height of her floor at the front door of her house so that sewage water does not enter the house of accused. He stated that the accused was residing in her house since his childhood.
16. DW2 Sh. Ram Pravesh deposed that since the year 1986 he was residing at RZ-470, Gali No.13B, Tughlakabad Extension, New Delhi. He knew the accused and she resides in his neighbourhood and family had no FIR No. 227/12 State Vs. Yashoda Devi Page no. 7 of 12 relations with the accused. He stated that the house of accused was constructed in the year 1988 and initially somebody else was residing in that house
17. Thereafter the court proceeded to hear the respective arguments of the Ld. APP and of the Ld. Counsel of the accused.
18. It has been alleged against the accused that on 13.03.2012 at House No. RZ 469/13B, Tughlaqabad Extension, New Delhi she was found carrying the unauthorized/illegal construction in the prohibited area of the Tughlaqabad Fort which falls within the area of a centrally protected monument and she failed to stop the said construction and to demolish the construction which she already had raised. That therefore, the accused has committed the offences punishable under section 19/30/32 of the AM & ASR act. It is alleged that the accused had failed to comply with the order issued by the Central Government vide notification No.4190 dated 28.06.1921 and the order of the Hon'ble Supreme Court of India passed in the petition titled S.N Bhardwaj Vs. Archaeological Survey of India and Ors passed on 06.03.2003 and thereby she had committed the offence punishable under section 188 of IPC. It is also alleged that the accused has committed the offence of criminal trespass by entering the above said land with intent to commit an offence and therefore he has also committed the offence punishable under section 447 of IPC.
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19. In the instant case, no documentary material has been produced by the prosecution to show that the premises in question and the construction raised on the same belonged to the accused. In such circumstances, the court has to rely on the testimony of the witnesses of the prosecution in order to decide the guilt of the accused.
20. The complainant Mr. Vikram Singh who has deposed as the witness PW2 has stated that on 13.03.2012 the monument attendant Sh. Shiv Kumar informed him that one lady namely Yashoda was raising new construction in place of the earlier existing construction at House No. 469, Gali No.13B and at the wall of the Tughlakabad Fort. He stated that the house No.469 is lying within a perimeter of 100 meters of the site of the ASI which construction is prohibited. In the cross examination this witness stated that the building of the accused was already existing. He however, could not tell whether he saw any construction material lying at the spot. From his testimony it is not clear whether this witness has visited the place of the incident or had seen the accused raising the alleged construction. The testimony of this witness is inconsequential to establish the guilt of the accused.
21. PW4 Mr. Shiv Kumar is the Monument Attendant named by the PW2 Sh. Vikram Singh. The said PW4 stated that on 13.03.2012 he saw the accused raising construction at House No. 469, Gali No.13B, after demolishing the earlier existing structure. He deposed that no construction could be raised within 100 meters of the outer wall of the fort. In his cross FIR No. 227/12 State Vs. Yashoda Devi Page no. 9 of 12 examination he stated that the spot where the construction was being raised was at a distance of 15-20 minutes from the wall. The prosecution has failed to explain as to how 15-20 minutes are taken to cover a distance of less than 100 meters. Therefore, the testimony of PW4 elicits no confidence to decide the distance of the property of the accused from the wall of the fort. PW8 Mr. Puran Chandra Dhyani has been examined by the prosecution to prove that the property in question lies within 100 meters of the Fort wall. He has deposed that the property falls in Khasra No. 505 and is about 15 meters from the Fort wall. The case of the prosecution is regarding the unauthorised construction. The defence has disputed the construction allegedly been raised as shown in photograph Ex.P6. The photograph has not been shown to this witness PW8 so that it can be stated by him that the property he was referring to was the same property. Therefore, a doubt remains about the identity of the property allegedly located within 100 meters of the Fort wall.
22. The evidence led by the prosecution in the form of the testimony of the above mentioned witnesses clearly shows that the allegation of illegal construction being raised by the accused on the day of the incident has not been established. No witness of the prosecution has described the actual construction which the accused was carrying out.
23. For the reasons recondite, the prosecution has failed to explain as to why the police officials or the officials of the ASI did not record the particulars and statements of the workers who were raising the construction at the behest of the accused, as alleged. The workers would have been in a FIR No. 227/12 State Vs. Yashoda Devi Page no. 10 of 12 better position, in the event of unavailability of any documentary material, to state that they were raising the construction at the behest of the accused. No construction material/equipments has been seized from the site of the offence. Further more, the prosecution has not examined any person from the vicinity in support of the fact that it was the accused who was raising the said construction.
24. It is the case of the prosecution that the construction was being raised on 13.03.2012. The prosecution has placed reliance on the photographs exhibit P-1 in support of the said allegation. The said photograph has not been duly proved by the prosecution as per the Indian Evidence Act. The prosecution has not even stated the device used to take the said photograph. No certificate U/s. 65B of Indian Evidence Act has been filed in support of the photograph. No negative has been filed. In such circumstances, it is not justified to place reliance on the said photograph to convict the accused.
25. In order to fasten the criminal liability to the accused, it is imperative for the prosecution to establish a water tight case. As observed above, the prosecution has not only failed to connect the accused with the property in question, it has also remained unsuccessful in establishing the alleged construction which the accused was raising. As observed above, the prosecution has failed to establish that it was the property of the accused over which the unauthorized construction was being raised. Therefore, the material produced by the prosecution in the form of evidence is not sufficient FIR No. 227/12 State Vs. Yashoda Devi Page no. 11 of 12 to give a finding of guilt.
26. In view of the above mentioned discussion, the court is of the opinion that the prosecution has failed to connect the accused with the alleged construction beyond a reasonable doubt and therefore there is insufficient ground to convict the accused for the offences under section 19/30/32AM & ASR Act,Section 188 IPC & 447 IPC. The accused Yashoda Devi accordingly stands acquitted of the above mentioned offences for which he has been charged in the present case.
27. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 16.03.2022 MM-04/South East/ Saket Courts
Delhi
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