Delhi District Court
State vs . Ashok Kumar Etc. on 21 July, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. ASHOK KUMAR ETC.
FIR No. 699/1991
PS: MOTI NAGAR
U/S: 448/380/341/34 IPC
Sr. no. of the case : 699/1991
Unique Case ID no. : 02401R0287092003
Date of commission of offence : Not Known
Date of institution of the case : 09.02.1994
Name of the complainant : Sh. Badlu Khan
Name of accused and address : 1). Hoshiyar Singh
S/o Sh. Dhan Singh
R/o WZ-54, Basai Darapur,
Delhi. (Since Expired)
2). Ashok Kumar
S/o Sh. Ved Prakash
R/o WZ-52, Basai Darapur,
Delhi.
3). Ravinder Kumar
S/o Sh. Hoshiyar Singh
R/o WZ-52, Basai Darapur,
Delhi. (Since Expired)
4). Vinod Kumar
S/o Sh. Hoshiyar Singh
R/o WZ-52, Basai Darapur,
Delhi.
Offence complained of or proved : U/s 448/380/341/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 21.07.2014
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BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on an unknown date and time at WZ-524/D, Basai Darapur, Delhi, all the accused persons in furtherance of their common intention committed house trespass by entering into the above FIR No. 699/1991, PS Moti Nagar Page 1/10 said shop with an intention to enter into the said shop and committed theft of 2 Charpais, 3 bedding and the machineries which were kept therein the shop by the owner Sh. Badru Khan and further accused persons wrongfully restrained Sh. Babu Khan from entering into the said shop by putting lock on the said shop. Accordingly, after the investigation, police filed the present charge sheet against the accused persons.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charges were framed against all the accused persons by my Ld. Predecessor for trial of offence U/s 448/380/341/34 IPC, to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined 5 witnesses.
4. PW1 HC Diwan Singh was the Duty Officer on 08.09.1991. On that day, he had received rukka at about 09:20 PM on the basis of which he recorded present FIR. Copy of the same is exhibited as PW1/A. original FIR register seen and returned. This witness was not cross-examined by the accused despite opportunity.
5. PW2 Sh. Babu Khan deposed that he used to do the work of spinning cotton with his father Badlu Khan at shop no.WZ-524D, Basai Darapur. It is stated by him that in the end of season, his father used to return to their village. It is stated by him that the above stated shop was taken on rent by him and his father on a monthly rent of Rs.200/-. It is stated that he and his father used to pay the rent jointly. It is stated by him that after end of season, when his father used to left for village then he used to start a juice shop at that place and he also used to manufacture iron rings. It is stated by him that he used to sleep inside the shop. It is stated that accused Hoshiyar Singh (since expired), his son Vinod Kumar, his another son Ravinder Nath (since expired) and his grandson Ashok Kumar used to threaten the witness to vacate the shop. It is further stated by him that on 04.06.1991, he went to Rohini FIR No. 699/1991, PS Moti Nagar Page 2/10 after closing the shop and when he returned on 05.06.1991, he found that Hoshiyar Singh, Vinod Kumar, Ravinder Nath and Ashok Kumar have entered the shop by breaking open the rear door. It is further stated by him that accused persons have put their lock on the shop after removing the lock of the complainant. It is further stated that this witness made complaint in PS regarding the act of accused persons but accused Hoshiyar Singh (since expired) reached the PS and stated that he does not consider Babu Khan as his tenant and he insisted that father of Babu Khan namely Badlu Khan be called. It is further stated that on 08.09.1991 Sh. Badlu Khan came. It is further stated that when this witness alongwith Mr. Badlu Khan went to the shop, accused Hoshiyar Singh, Vinod Kumar and Ashok Kumar have stopped them, restrained them from opening the shop. However, on 09.09.1991, PW Babu Khan and his father opened the shop as the latch (kunda) was loose from inside. On opening the shop, it was found that articles of PW Babu Khan lying in the shop were missing rather there were a wooden gate bracket (Chaukhat), one iron drum, two red stones, two frying pan (Kadahi) and two wooden roots (Jade). It is stated by him that, on that police came at the spot and seized the above stated articles vide memo Ex.PW2/A. It is further stated that one Jaipal Singh also came at the spot. It is stated that on 15.09.1991, he handed over certified copy of a case of permanent injunction from dispossession, which is Ex.P1 to the IO alongwith one inland letter and two postcards with vouchers and receipts. These documents were exhibited as Ex.P4, P5 and P6. This witness also filed on record certified copy of order of Ld. Sub Judge dated 21.09.1997 exhibited as Ex.P7 (OSR). It is stated by this witness that he has given all original documents to the police. This witness correctly identified accused Ashok Kumar and Vinod Kumar, who were present in the Court. This witness also exhibited seizure memo of documents Ex.PW2/B and his statement as PW2/C. This witness was not cross-examined despite opportunity.
6. PW3 Sh. Badlu Khan deposed that he came to Delhi in the year 1976-77 and had taken a shop bearing no.524D, Basai Darapur, where FIR No. 699/1991, PS Moti Nagar Page 3/10 he used to do the work of spinning cotton with his son Babu Khan in the winter season. It is stated by him that he used to go to his village after season. During that time, his son Babu Khan used to do the work of manufacturing iron rings and fruit juice in that shop. It is stated by him that in the year 1991 after end of the season, he left for his village and after few months returned on 08.09.1991 when his son Babu Khan told him that accused Hoshiyar Singh (since expired) has put his lock on the shop and have taken possession of the shop. It is further stated by this witness that in that shop there were a juice machine, a machine of manufacturing rings, machine of spinning cotton, two cots (charpai), 3 bed mattresses and utensils which were not returned by the accused persons. This witness exhibited statement made by him to the police as Ex.PW3/A. This witness was not cross-examined despite opportunity.
7. PW Jaipal S/o Sh. Ganga Singh has deposed that on 08.09.1991 at around 08:00/09:00 PM, he was present at his shop at C-34, Main Basai Darapur. It is further stated by him that one Babu Khan was tenant of one Hoshiyar Singh in one shop. It is further stated that on that day, this PW noticed that accused Hoshiyar Singh (since expired) and his two sons Vinod Kumar and Ravinder (since expired) were taking out a cotton grinding machine and one juice machine and one machine of manufacturing base of the drum. This witness does not remember other articles. It is stated by him that he did not ask the accused persons why they were taking out such articles from the premises of Babu Khan. It is stated by him that he did not see accused Ashok involved in said incident. It is further stated that police recorded his statement on the next date and had seized one Karahi, 2-3 bags of tooda (fodder), one iron trunk and one iron jungle vide seizure memo Ex.PW2/A. Chief-examination of this witness was recorded on 20.05.2004, however, he was cross-examined on 18.04.2013. On 18.04.2013 Ld. APP for State cross-examined this witness U/s 154 Indian Evidence Act. In his cross-examination, it is stated by him that he does not know whether police had seized articles namely one wooden chaukhat, one karahi, one iron drum, two stones of red colour, FIR No. 699/1991, PS Moti Nagar Page 4/10 two sacks of toodi (fodder) and two pieces of tree trunk as per seizure memo Ex.PW2/A. It is further submitted by him that he does not remember whether these articles were recovered from the shop no.WZ-524/D, Plot No.2, Basai Darapur, which was under possession of Hoshiyar Singh and his son. It was voluntarily deposed by this witness that he had seen police and lot of people gathered outside the shop, which was just opposite his shop but he does not remember whether deceased Shyam Singh (apparently it is a typographical error as name of accused is Hoshiyar Singh) and his sons had taken away the shop as well as articles belonging to Babu Khan. This witness was confronted with his statement recorded U/s 161 Cr.P.C but it is stated by him that he does not remember anything as mentioned in his statement due to passage of time. This witness was cross-examined on behalf of the accused persons. In his cross-examination, it is stated by him that accused Ashok and Vinod had nothing to do with any dispute regarding shop between Babu Khan and accused Hoshiyar Singh (since expired). It is accepted by this witness that he had not seen accused Vinod and Ashok regarding possession or dispossession of Babu Khan from the shop. It is accepted by this witness that possession of the shop always remained with Hoshiyar Singh. He also accepted that Babu Khan and his father were merely allowed by Hoshiyar Singh to carry out their total manufacturing and related business in winter season only.
8. PW4 Farjand Ali deposed that he has not witnessed any incident regarding theft as he has away to Meerut at his home and he has only heard about the theft from the public persons of the locality after coming from Meerut. It is further stated that one Sikh police official came and inquired about his whereabouts and he has not made any statement to police. It is further stated that he had been doing the work of sheet metal at that time. This witness was cross-examined by the Ld. APP. In his cross examination by the APP he denied that he made any statement to the police. This witness was not cross examined by the defence counsel.
FIR No. 699/1991, PS Moti Nagar Page 5/10
9. PW5 Madan Lal deposed that he was doing the job of repairing the stoves at shop no.WZ-524, Basai Darapur, New Delhi and his sons were also assisting him. Witness further stated that Babu Khan was also having a shop after 2-3 shops of his shop and he deals with the business of quilt spinning and some time of cooler sale. Babu Khan was working in his shop with his father. Babu Khan and his father were running the shop as they were tenant of the owner of the shop Vinod Kumar. The witness was cross-examined by the Ld. APP. In his cross examination this witness denied the case of the prosecution.
10. PW6 ASI Mahavir deposed that on 08.09.1991 he was posted as Constable in PS Moti Nagar and on that day he was on patrolling duty.
At about 08:30 PM when he was patrolling in Basai Darapur area, he met SI Sukhdev Singh and SI Sukhdev Singh had recorded statement of one Badlu Khan which SI Sukhdev Singh handed over to him after preparing a tehrir with directions to get FIR registered at PS Moti Nagar. The witness further deposed that he accordingly got the present case FIR registered and after getting FIR registered, he was going towards the place of occurrence but he met SI Sukhdev near Natraj Cinema, where he handed over to him the copy of FIR and tehrir and thereafter, he resumed patrolling duty. This witness was not cross-examined by the accused despite opportunity.
THE DEFENCE :
11. Statement of accused persons U/s 313 Cr.P.C were recorded separately on two occasions as PW Babu Khan and Jaipal were recalled and cross examined after recording of first statement of accused persons. In their statement, the accused persons controverted and denied the allegations levelled against them. Accused persons stated that they are innocent and have been falsely implicated.
Accused persons opted not to lead any defence evidence.
THE ARGUMENTS:
12. Ld. APP for state has argued that witnesses have supported the FIR No. 699/1991, PS Moti Nagar Page 6/10 prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 448/380/341 read with 34 IPC are proved beyond reasonable doubt.
13. On the other hand, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons. It is also stated that nothing was recovered from the accused persons to prove the alleged theft. It is also pointed out that Pws have not shown any bill our any other document to show that they had any machinery or other things lying in there shop.
THE FINDINGS:
Offense U/s 448/380/341 read with 34 IPC:
14. I have heard arguments from Ld. APP for State, Ld. Defence counsel for the accused and perused the evidence and documents on record carefully.
15. The ingredients to prove the offence punishable under section 380 IPC are as follows:-
(1) That the accused had dishonestly taken the property. (2) That the property was movable.
(3) That the property was taken out of the possession of another person/complainant.
(4) That it was taken without the consent of that person / complainant.
(5) That there must be some moving of the property in order to accomplish the taking of it.
(6) 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.
16. In order to bring home guilt of the accused persons for the offence under Section 448 IPC, the prosecution was required to prove following ingredient :
FIR No. 699/1991, PS Moti Nagar Page 7/10
(i). Entry into or upon property in possession of another;
(ii). Such property being used as a human dwelling, place for worship, place for custody of property;
(iii). If such entry is lawful, then unlawfully remaining upon such property;
(iv). Such entry or unlawful remaining must be with intent to commit and offence or to intimidate, insult or annoy any person in possession of the property.
17. In order to bring home guilt of the accused persons for the offence under Section 341 IPC, the prosecution was required to prove following ingredient :
(i). Voluntary obstruction of a person.
(ii). The obstruction must be such as to prevent that person from proceedings in any direction which he has a right to proceed.
18. PW2 complainant/ public witness is the most material witness of the present case. As the testimony of PW3 is hearsay as to the aspect of house trespass and wrongful restraint as it is submitted by him that when he returned to Delhi on 08.09.1991 his son told him about the factum of locking their shop by the accused Hoshiyar Singh (since expired). PW Jaipal Singh in his cross examination by the Ld. APP has stated that he does not remember whether deceased Shyam Singh (apparently it is a typographical error as name of accused is Hoshiyar Singh) and his sons had taken away the shop as well as articles belonging to Babu Khan, he was confronted with his statement recorded under section 161 Cr.P.C, despite that he stated that he does not remember anything due to passage of time. In his cross examination by the defence it is stated by him that accused Ashok and Vinod had nothing to do with any dispute regarding shop between Babu Khan and accused Hoshiyar Singh (since expired). It is accepted by this witness that he had not seen accused Vinod and Ashok regarding possession or dispossession of Babu Khan from the shop. It is accepted by this witness that possession of the shop always remained with Hoshiyar Singh. PW4 Farjand Ali, stated that he has not witnessed FIR No. 699/1991, PS Moti Nagar Page 8/10 any incident regarding theft as he has away to Meerut at his home and he has only heard about the theft from the public persons of the locality after coming from Meerut. PW5 Madan lal deposed that Babu khan and his father were tenant of the shop owner Vinod. In his cross examination by Ld. APP this witness denied the case of the prosecution.
19. Testimony of PW2 though remain unrebutted as he was not cross examined, but the same does not appear to be truthful. As it is claimed by this witness that when he left for Rohini after closing shop on 04.06.1991 and came back on 05.06.1991 he found that accused Hoshiyar Singh (since expired), Vinod Kumar, Ravinder Nath(since expireed) and Ashok Kumar had entered his shop after breaking open the rear door, it is further stated by him that he and his father on their own get back possession of the shop on 09.09.1991. This story is untruthful as this witness himself filed on record copy of a suit for permanent injunction signed on 26.07.1991 and filed on 29.07.1991 filed by him, wherein it was claimed by PW-2 Babu Khan that he was having possession of the shop bearing No. WZ 524/D Basai Darapur, New Delhi. Thus the contention of PW-2 that he was dispossessed off from the property on 04-05.06.1991 or that he regain the possession on 09.09.1991 is untruthful. It is also noted that PW Babu Khan and his father Badlu Khan had not regain the possession in front of public person or police official or any Government Servants. In fact when they called the police they were already in possession of the property. Thus the testimony of PW Babu Khan and his father PW Badlu Khan are not reliable in respect of commission of offence of house trespass or wrongful restraint.
20. Since, testimonies of Pws are not reliable in respect of offence of trespass in the shop in question, thus they cannot be relied as to aspect of theft of certain articles from their shop. Further there is no cogent evidence on record to prove that accused persons had committed theft in the shop. No stolen article has been recovered from the accused persons.
FIR No. 699/1991, PS Moti Nagar Page 9/10
21. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
22. In view of the above stated facts and discussion this Court is of the opinion that prosecution has failed to prove guilt of accused persons beyond reasonable doubt and testimony PW Babu KHan and PW Badlu Khan appears to be motivated and untrustworthy. Accordingly it is a fit case in which benefit of doubt must be given to accused persons, which is accordingly given. Hence, accused Ashok Kumar S/o Ved Prakash and accused Vinod Kumar S/o Hoshiyar Singh are hereby acquitted of offence U/s 448/341/380 read with 34 of IPC.
23. As per Section, 437-A Cr.P.C, accused persons are admitted to bail on his furnishing the bail bond of Rs.10,000/- with one surety of like amount each. File be consigned to record room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 21.07.2014 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 699/1991, PS Moti Nagar Page 10/10