Delhi District Court
State vs Dev Parkash on 26 August, 2025
IN THE COURT OF MS. KRITIKA JAIN, JMFC-03,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CNR No. : DLSW02-000385-2010
FIR No. : 192/2009
U/s : 451/380/411/34 IPC
P.S. : Bindapur
State v/s Dev Prakash
a) Name & address of the
complainant : Sh. Neeraj Kumar
S/o Sh. Brijpal Singh
R/o R-11, Chankya
Palace Part II, Uttam
Nagar, New Delhi.
b) Name of accused persons :1. Dev Prakash Bhagel
S/o Sh. Balk Das Bhagel
2. Meena Bhagel
W/o Sh. Jai Prakash
Bhagel
3. Jai Prakash Bhagel
S/o Sh. Balk Das Bhagel
c) Offence complained of : Sections 380/451/411/34
IPC
d) Plea of the accused persons : Pleaded not guilty
e) Ld. APP for the State : Sh. Manish Kaushik
f) Final Order : Acquittal u/s 380/411
IPC and conviction u/s
451/34 IPC.
g) Date of Institution : 19.11.2009
h) Judgment Pronounced on : 26.08.2025
JUDGMENT
Brief facts of the case:
1. It is the case of the complainant that on 25.06.2009, all accused persons entered into the shop i.e. RZR-39, State v/s Dev Prakash Page 1 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:25:38 +0530 Chankaya Place-II, Uttam Nagar and committed theft of household articles i.e, the counter freeze, bread plastic trays and milk plastic carate and thereby, the accused persons committed offence punishable u/s 451/380/34 IPC. Further, on 25.06.2009, accused Jai Prakash was found in possession of two plastic crates red and yellow colour which were recovered at his instance and which he dishonestly received or retained in his possession.
Proceedings before the Court
2. On completion of the investigation, a charge sheet was filed against accused persons. After taking cognizance of the offences, the said accused persons were summoned to face trial.
3. On appearance of the accused persons, copy of charge sheet along with documents was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC').
4. After hearing arguments on charge, all accused persons were charged for the offence u/s 451/380/34 IPC and accused Jai Prakash was charged for the offence u/s 411 IPC.
5. During the trial, prosecution has examined the following witnesses:
(i) PW1-Sarvan Kumar S/o Bal Mukand R/o RZ R-38, Chanakya Palce, Uttam Nagar, New Delhi aged 40 years had deposed that he had a private job. He was permanent resident of the above mentioned address.State v/s Dev Prakash Page 2 of 29 FIR No. 192/2009
PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:25:49 +0530 Complainant Neeraj ran a shop of Milk Dairy in RZR-39, Chanakya Place, Part II, New Delhi. Complainant was running the shop of Milk Dairy for a long time but he had seen him running this shop from 1994. On the day of inciden,t when he left for his office in the morning, Neeraj was present in the shop. In the evening, when he came back after his job, all the accused alongwith family were present at the shop RZR-39 Chanakya Place Part II and were residing in the shop. A police case was registered against the accused and IO recorded his statement in the present case. Nowadays, the shop in the possession of the complainant Neeraj and he was residing there.
(ii) PW2 Sh. Shakil Ahmed s/o Sh. Sirajuddin Ahmed, R/o R 65 Chankya place, Part-2 New Delhi 59 had deposed that he was running a furniture shop at the above mentioned address. Complainant Neeraj pal also run a milk diary at R 39, Chankya Place, Part II, New Delhi for the last 17/18 years. On the morning 25.6.2009, Neeraj was running the said shop and was present there. At about 1 p.m, when he came back from his shop, he saw the articles of shop of complainant Neeraj were lying outside and some persons had taken the possession of the said shop.
Nowadays, the said shop was in possession of the complainant herein.
State v/s Dev Prakash Page 3 of 29 FIR No. 192/2009PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:25:57 +0530
(iii) PW3 Sh. Praveen s/o Sh. Tilak Raj R/o RZ R 66, Chankya Place, II, New Delhi had deposed that he was engineer by profession and was living at said address. Complainant Neeraj Kumar run a milk dairy shop in his neighbourhood at R39 Chankya Place. He was also buying milk from the said shop for the last 18 years. On the morning of 25.6.2009, he had also purchased the milk from the shop of Neeraj. He had gone for office at about 9.45 p.m Neeraj was present in the said shop. In the evening time, when he came back to his house, he saw that the articles of the shop of Neeraj were lying outside and some persons had taken possession of the same. At present, the complainant was in possession of the said shop and was running his shop. Police had investigated the matter from him and recorded his statement.
(iv) PW4 HC Karan Singh no. 296 S/W PS Binda pur, Delhi had deposed that he was as above and he was posted as MHCM at PS Binda Pur. He had brought original register no. 19. As per entry no. 489/09 dated 25.6.2009, SI Chander Prakash deposited one motorcycle no. DL 9SB-8385 alongwith two plastic crade of milk in mal khana of PS Binda Pur. On 11.7.2009, the motorcycle was released on superdari by the order of the court. Copy of relevant entry is Ex. PW4/A. (OSR) State v/s Dev Prakash Page 4 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:26:04 +0530
(v) PW5 Sh. Neeraj Kumar S/o Late Brij Pal Singh aged about 43 years R/o R-50, Chankya Place, Part-II, New Delhi - 59 had deposed that the property bearing No. RZR-39A, Chankya Place, Part-II consisting of 100 sq. yard was in the name of his father late Sh. Brij Pal Singh. He used to reside at the said property before the year 2009. He had kept (Girvi) the original document of the ownership of the said property with one Ramu in lieu of some money which he had borrowed from him. He sold the area of 70 sq. yards of the said property to one Anil and possession of the 70 sq. yards was handed over to the said Anil and in the remaining 30 sq. yards area he used to run a milk shop. He used to close the said shop at around 12.00 noon for the lunch. On 25.06.2009, he had gone to his rented residence at R-11 in the same locality for lunch after closing the shop. At about 2.30 PM, when he was taking rest at his house, one of his neighbourers, namely, Sanju came to him by raising alarm and knocked at door of the house. He came down and opened the door and told him that some persons had broken the lock of his shop and some were throwing his articles from the shop outside and some were taking away articles from his shop and they were accompanied 8-10 peoples. He rushed towards his shop and saw the accused persons Jai Parkash, Dev Parkash @ Babloo and wife of Jai Parkash, namely, State v/s Dev Prakash Page 5 of 29 FIR No. 192/2009 PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:26:12 +0530 Meena Baghel were present inside his shop and they were removing the articles from his shop outside.
He tried to stop them and at this they quarrel with him and gave beatings to him. Many public persons gathered there. He requested his brother Vishwas Kumar, who was also present there to make the call to police. Accused persons had removed three fridge, Bred / milk trays of Amul, MS, Reliance, counter and some other articles including household articles from his outside. Police came at the spot and his statement was recorded by the police Ex. PW- 5/A bearing his signatures at point A. Police had also recorded the statement of 4-5 neighbourers. He had informed the police that many articles from the shop were missing. Thereafter, police took him to the house of accused Jai Parkash Bhagel and from one room of the house, one tray of Amul and one tray of Reliance was recovered which were seized vide memo Ex. PW-5/B bearing his signatures at point A. Many articles were not found and police carried out their proceedings. He had given the photocopies of the ownership of the property in the name of his father to the police. Photocopies of the documents are marked collectively as Mark X. Thereafter, Ld. APP for the State sought persmission to ask leading question which was allowed.
State v/s Dev Prakash Page 6 of 29 FIR No. 192/2009PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:26:20 +0530 Ld. APP for the State went on to ask "Is it correct that one motorcycle bearing No. DL-9SU 8385 which was kept in your shop by the accused Jai Parkash Bhagel which was also seized by the police?" to which he replied It is correct that the police had seized the motorcycle vide seizure memo Ex. PW-5/C which bears my signatures at point A. Thereafter, MHCM produced two trays, one of Amul(yellow colour) and other is of Reliance (orange colour) in unsealed condition bearing the particulars of the case. Same were shown to the witness, who correctly identified the same. Trays are Ex. P-1 and P-2.
(vi) PW6: Rajesh Sharma S/o Sh. Nar Singh Das Sharma aged about 45 years R/o D-120, Janki Puri, Near Bindapur DDA Flats, New Delhi-59 had deposed that he had been running government ration shop at the above mentioned address and the person Neeraj, who used to run dairy at Chankaya Place. In the year 2006, Neeraj came to him and told him that he took heavy loan so he wanted to sell his house. He told this fact to his relative Ram Das, who bought his house measuring 100 sq. yards for Rs. 5 lacs. The documents were prepared regarding this transaction. Thereafter, in the year 2006, Ram Das sold 70 sq. yards land to Anil and remaining 30 sq. yards to Jai Parkash Bhagel in June, 2008. Documents were also State v/s Dev Prakash Page 7 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:26:27 +0530 prepared and he was as a signatory. Police recorded his statement.
(vii) PW-7 HC Rakesh Chandra, No. 28940258, District SW, PS Palam Village, New Delhi had deposed that on 25.06.2009, he was posted at PS Bindapur as DO from 05.00 PM to 1 AM. At about 10.35 pm, Ct.
Harphool had brought a rukka sent by SI Chandra Prakash on the basis of which he registered FIR No.192/09. The FIR is Ex. PW7/A(OSR). He also made endorsement Ex. PW7/B on the rukka. Both bearing his signatures at point A. On the same day at abut 3.50 P.M., a call was received regarding a quarrel and the same was reduced into writing vide DD No. 34A and marked to SI Chandra Prakash. The said DD entry is Ex. PW-7/C.
(viii) PW-8 SI Chandra Prakash No. D-1798, ACP office, Vikas Bhawan, New Delhi had deposed that on 25.06.2009 he was posted at PS Bindapur and on that day DD No. 34-A is already Ex. PW-7/C was marked to him and he alongwith Ct. Harphool went to the spot i.e. RZR-39, Chanakya Place-II, Bindapur where they met the complainant Neeraj Kumar and after conducting the investigation, he recorded the statement of the witnesses. On 25.06.2009, he recorded statement of complainant Neeraj Kumar which is already Ex. PW5/A and bearing his signature at point B. On the basis of State v/s Dev Prakash Page 8 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:26:36 +0530 complainant, he prepared tehrir Ex. PW8/A and bearing his signature at point C. He handed over the tehrir to Ct. harphool for the registration of FIR. Accordingly, he went to PS and came back at the spot after some time. He handed over computerised copy of FIR and original tehrir to him. He prepared site plan at the instances of complainant which is Ex. PW8/B and bearing his signature at point A. He seized plastic carrot from house of accused Jai Parkash and motorcycle bearing no. DL9SU8385 which was parked inside the shop vide memos already Ex. PW5/B & ExPW5/C and bearing his signature at point B respectively. He recorded disclosure statement of accused Jai Parkash Baghel which is already Ex. PW9/C and bearing his signature at point A. He arrested the accused Jai Parkash Baghel vide memo already Ex. PW9/A and bearing his signature at point A and conducted his personal search vide memo already Ex. PW9/B and bearing his signature at point A. He issued notice U/s 91 CrPC to complainant Neeraj for production of ownership documents of alleged plot vide Ex. PWB/C and bearing his signature at point A. He recorded statement of witnesses U/s 161 CrPC. On 07.07.2009, he formally arrested the accused Meena Devi and Dev Parkash and conducted their personal search vide memos ExPW8/D to ExPW8/G and bearing his signatures at point A respectively. He State v/s Dev Prakash Page 9 of 29 FIR No. 192/2009 PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:26:45 +0530 released both the accused Dev Parkash and Meena Devi on personal bail bonds ExPW8/H & ExPW8/l and bearing his signatures at point A & B respectively. He obtained the photographs of shop and luggage articles as already ExP-1 (colly.). After completion of investigation, he filed the charge-
sheet before the Hon'ble court. Accused persons were present and correctly identified by the witness. Photographs of the spot were shown to the witness and witness correctly identifies the same. Same is already ExP-1 (colly.).
(ix) PW-9 ASI Harphool Singh No. 397/SW PS Vasant Kunj South, New Delhi had deposed that on 25.06.2009, he was posted in PS Binda Pur as constable and on that day, he was on emergency duty from 8am to 8pm alongwith SI Chander Parkash. On receipt of DD no. 34 A, he alongwith SI Chander Parkash went to the spot i.e. RZR-39, Chankiya Palace II, Uttam Nagar, New Delhi. At the spot, they found the crates of milk and breads were scattered on the road outside the shop. One motorcycle Bajaj Discover black colour, bearing registration no. DL 9S U8385 was found parked inside the shop. At the spot, one person, namely, Neeraj and accused Jai Parkash were found present and both of them were laying their claim of ownership over the shop. However, both of them were failed to produce any documents when asked State v/s Dev Prakash Page 10 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:26:53 +0530 by the IO. On the local enquiry, they came to know that the aforesaid Neeraj was in the possession of the aforesaid shop for the last many years and he had been running a shop in the name and style of Amul Milk. Thereafter, IO recorded the statement of Neeraj and prepared the rukka upon the same and got the FIR registered through him. He came back at the spot and handed over original rukka and copy of the FIR to the IO. IO prepared the site plan and thereafter arrested the accused Jai Parkash vide arrest memo Ex. PW9/A and his personal search was conducted vide memo Ex. PW9/B. IO recorded the disclosure statement vide memo Ex. PW9/C. IO also taken the aforesaid motorcycle to the police cossession vide seizure memo already Ex. PW5/C. Two plastic crates were also got recovered by accused Jai Parkash Bhagel and same were taken into police possession vide seizure memo already Ex. PW5/B. Thereafter, the case was deposited in the malkhana. Accused Jai Parkash was correctly identified. The aforesaid crates/trays were already Ex. P-1 and P-2. Thereafter, four photographs of case property i.e. motorcycle bearing No. DL9SU8385 and one red crate (plastic milk crates) of reliance diary pure fresh wholesome, one yellow colour Amul Vitran Sangh, Gujrat Sehmati Dudh were shown to the witness and witness correctly State v/s Dev Prakash Page 11 of 29 FIR No. 192/2009 PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:27:00 +0530 identified the same. The same are ExP-1 (collectively).
(x) PW-10 Dr. Rajesh Kumar Pal S/o Sh. Chander Pal R/o RZ-R-39, Chanakya Place-II, Uttam Nagar, New Delhi had deposed that he was a Dentist and residing at the abovesaid address with his family.
Neeraj S/o Brijpal Singh ran a dairy of Milk in his neighbour house no. RZR-39A, Chankya Place-II, since 15-16 years. On 25.06.2009, at about 2:30 p.m he was present at his house. Jai Parkash and his brother Babloo and wife of Jaiparkash were come at the shop of Neeraj & started to throw the luggage/articles outside from the shop after opening its shutter. Later, Neeraj put back his articles/ luggage inside the shop. He did not know any transactions, papers of the shop between Neeraj and accused persons. Neeraj was running shop since last 15-16 years. IO recorded his statement. Accused persons were correctly identified. The photographs of shop & luggage/ articles were already ExP-1 (colly.) were shown to the witness and he correctly identified the same.
(xi) PW-11 Shailesh Gupta S/oSh. Dafedar Gupta R/o TA-130, Gali Number 4, Tughlakabad Extn, New Delhi, Kalkaji South Delhi-19 had deposed that he was residing at the abovesaid address with his family. He was running shop of electric. On State v/s Dev Prakash Page 12 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:08 +0530 06.02.2006, Ramdas, Rajesh and Neeraj came at his shop and Ramdas had purchased the house RZ-R-
39, Chankya Place, Part-II, Uttam Nagar from Neeraj in the sum of Rs. five lacs. Mr. Ramdas handed over Rs. five lacs to Neeraj in his presence. Neeraj had transferred the documents of ownership in favour of Ramdas at District center through Notary. Prior to this, Neeraj used to run a shop of dairy of Milk in abovesaid house and after one-two days, Neeraj removed his articles of milk shop and handed over the possession of shop to Jai Parkash Baghel as Ramdass sold his 30 sq. yds portion of his house to Jai Parkash Baghel and Ramdas had sold the remaining portion of 70 sq. yds. of his house to Anil.
6. The prosecution evidence was closed and thereafter the statement of accused persons u/s 313 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to them, to which they had denied to be correct and submitted that they have been falsely implicated. The accused persons chose to lead evidence in their defence.
7. During the trial, defence has examined the following witnesses:
DW1 Rajesh Sharma had deposed that he was residing at the abovesaid address alongwith his family and he was running a Fair Price Shop at aforementioned address. On State v/s Dev Prakash Page 13 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:16 +0530 25.06.2009, a settlement was executed between Neeraj and Jai Prakash Baghel, (who were resided in his locality) verbally for vacating the shop by accused Jai Prakash Baghel for total consideration of Rs 20,000/-. Neeraj vacated the said shop after taking the aforementioned amount and thereafter Jai Prakash Baghel had taken his possession for the said shop. After two and half hour, Neeraj alongwith his brother came at the shop (property in question) and demanded Rs. one lakh more from Jai Prakash Baghel. On this the hot altercation took place between Neeraj and Jai Praksh Baghel. Neeraj made call at 100 number.
Police reached to the spot and took him to PS Bindapur.
On 27.06.2009 ACP & other police officials came at the shop of Jai Prakash Baghel in two tempo. ACP was sitting in one police gypsy. The police officials came alongwith Neeraj and his brother and alongwith some their other relative. The family members i.e mother, daughter and wife of Jai Prakash Baghel were also present there. Meanwhile, police officials forcefully threw out the articles belonging to shop of Jai Prakash Baghel and no body was allowed to come near the spot and got possession of the said shop and handed over to the Neeraj and his family members illegally and forcefully.
He was residing at the distance of 500 meter from the shop of Jai Prakash Baghel. He narrated the whole incident to the Jai Prakash when he released from the Jail. The motorcycle belonging to the brother of Jai Prakash Baghel had also taken to the PS by police officials when the bike was lying inside the shop State v/s Dev Prakash Page 14 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:23 +0530 of Jai Prakash & same was released by Jai Prakash Baghel. The said witness was cross examined by Ld. APP for the State.
DW2 Jai Prakash Baghel had deposed that he was residing at the abovesaid address alongwith his family and was doing work of supplying of leaves of eating PAN in the market. On 10.06.2008, he had purchased one plot measuring 30 sq. yds from Ram Dass Sharma. Anil Kumar was the owner of remaining part of about measuring 70 sq yds. same property. Neeraj Kumar was the tenant in the premises of 70 sq yds belonging to Anil Kumar. When owner Anil asked from Neeraj Kumar to vacate the premises to reconstruct the same, Neeraj Kumar approached him to give his portion 30 sq yds to him for two month without paying any rent. He gave his portion to Neeraj Kumar for only two month on rent on dt. 25.06.2008. But after 02 month, Neeraj asked for more time & agreed to paying rent of Rs 4000/- per month, however, he had never paid him any rent. After one year on 24.06.2009, he went to Neeraj Kumar & asked to vacate his portion but he refused to do so and demanded Rs 30000/- in lieu of vacate the same.
On 25.06.2009, he paid Rs 20,000/- for vacating the premises and thereafter he vacated his portion of property. However, in the evening on the same day in between 5 to 6 PM, Neeraj alongwith his brother Vishwash and his mother came at the premises & told that Neeraj vacated the premises in less amount & demanded Rs one lakh more from him and they further stated that if he would not pay the same to them, he would be falsely implicated in a case. They made shouting a noise by State v/s Dev Prakash Page 15 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:30 +0530 saying that their household articles were thrown away by him. Thereafter they called the police and PCR van came to the spot. Police official took him to the PS & he remained in JC for 09 days. In the meantime, the present case was registered against his wife, his brother and him. In between 25.06.2009 to 27.06.2009, his family remained stayed in his portion of 30 sq yds. & thereafter in his absence, Neeraj and his family members came at his shop and beaten to his wife and they had stolen/ snatched one gold chain of his wife, one HP gas cylinder with chulah. Someone made call at 100 number. PCR van took his wife to DDU hospital for her treatment. When he released from JC, he found that on 27.06.2009 police officials alongwith ACP came at his shop alongwith Neeraj and his family members who were pelting stone on his family members also, who had already present at his shop. They had also thrown the stones at the shop of Dr. Rajesh Kumar Pal who had also received injuries on his head by the stones. They had also thrown away his family members from his house & when his daughter asked from the police official about the matter, one of police official slapped his daughter. He made complaint to Police Commissioner, ITO, New Delhi & SHO PS Bindapur in this regard. The said defence witness was cross examined by Ld. APP for the State.
DW-3 Meena Bhagel has deposed that she was residing at above said address alongwith her family and she was a housewife. ON 25.06.2009, one plot was purchased by her husband in Chanakya Place before one year of the incident. One person, namely, Neeraj Kumar who was licensee basis in house no. R-39, Chanakya place I by her husband for the period of two State v/s Dev Prakash Page 16 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:37 +0530 months. When they asked for the rent for two months from him. Neither he paid any rent nor vacated the premises in dispute. He asked for money for Rs. 20000/- for vacating the said premises after discussions with her husband paid Rs. 20000/- to the said Neeraj Kumar after taking the money he vacated the said premises. She and her family persons came to her house and asked for more money. When her husband refused to give more money stating that he had purchased the said property after giving lot of money, the Neeraj called the police. Police took her husband to PS. Thereafter, Neeraj along with his associates gave beatings to her and her children and during giving beatings, her gold chain was snatched by Neeraj. They also thrown out her articles from the said premises and half of the household articles were taken by them and remaining remained in the house. She called to the police and police took her to the Jindal hospital and her MLC was prepared by doctor. She came back to her house after treatment and resides in the house peacefully till 27.06.2009 in the evening, one truck full of police officials and some were in uniform and some were in formal dress came alongwith accused Neeraj and his associates at her house and police person tried to take away herself, her daughter and her mother in law forcefully in order to dispossess them from the said property but somehow they escaped from there. Public also throw stones on the public persons. When they went away from the spot, accused Neeraj with the help of police took the possession of the said premises and kept there on goods. At that time, her husband was in police custody since 25.06.2009 for many days. After few days, her husband came back at home after getting bail, she told everything State v/s Dev Prakash Page 17 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:44 +0530 to her husband. Thereafter, her husband made written complaint to the higher authorities but no action was taken by them. Neither possession of the house nor our goods were recovered by the police. Her household articles including gas, stove, chair, utensils are in possession of the accused till date. Thereafter, her husband filed the complaint case against the Neeraj and his brother and same is pending before present court. Her MLC is already Ex.DW2/A (colly)(OSR).The said witness was cross-examined by Ld. APP for state.
8. The onus and duty to prove the case against the Accused persons is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, he is entitled to be given benefit of doubt resulting in his acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur, VIII (2007) SLT 454 (SC).
9. In the judgment titled as Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, (2013) 5 SCC 722 the Hon'ble Supreme Court held:
".......Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' State v/s Dev Prakash Page 18 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:50 +0530 is quite large and divides vague conjectures from sure conclusions In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an Accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the Accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
10. Section 380 IPC provides punishment for theft committed in a dwelling house etc. The offence of theft is defined in Section 378 IPC as per which the essential ingredients of the offence of theft are as under:
1) Dishonest intention to take property
2) Property must be moveable State v/s Dev Prakash Page 19 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:27:59 +0530
3) It should be taken out of the possession of another person
4) It should be taken without the consent of that person and
5) There must be some removal of the property in order to accomplish the taking of it.
11. Now coming to whether offence under Section 380 IPC is made out against the accused persons or not. It has been alleged by the prosecution that at the time of the incident, the accused persons dishonestly removed articles and hence they committed offence under Section 380 IPC. However, for bringing home the guilt of the accused persons under Section 380 IPC, it is necessary that the prosecution proves that the stolen goods belonged to the complainant. It is an admitted case that some property was recovered from the possession of the accused Jai Prakash Bhagel.
12. As regards offence u/s 380/34 IPC, the complainant has miserably has failed to prove on record the articles belonging to him which were lying in property in question and were allegedly stolen by the accused persons after trespassing in to the ground floor of property in question. Although PW-5 has stated that three fridge, bred/milk trays of amul, Dms, reliance, counter and some other household articles were missing, however, the contents thereof have not been proved by the complainant. He has not deposed about even a single item/ article belonging to him which was lying at thew property in question and was found was allegedly stolen by the accused persons. In the absence of State v/s Dev Prakash Page 20 of 29 FIR No. 192/2009 PS Bindapur KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.08.26 16:28:08 +0530 such deposition, in my opinion, the accused persons cannot be convicted for offence u/s 380/34 IPC as charged against them as the evidence on record in this regard is highly insufficient.
13. The accused persons have also been charged for the offence punishable under section 451 IPC which provides punishment for house tres-pass in order to commit an offence punishable with imprisonment. The said provision also provides for aggravated form of punishment if the offence intended to be committed is theft. As has been elaborated above, the offence of criminal tres-pass is when one person enters into a property in possession of another with the intention to commit an offence. When such tres- pass is made in a building, tent or vessel used for human dwelling or as a place of worship or as a place for custody of property, it becomes house tres-pass as defined under section 442 IPC. Therefore, to bring home the guilt of section 451 IPC, it is essential upon the prosecution to prove that the accused entered the shop with the intent to commit the offence of theft.
14. For bringing home the guilt of the accused under Section 451 IPC, the prosecution must prove that :
(1) that the accused committed criminal trespass;
(2) that such criminal trespass was committed by entering into, or remaining in, a building, tent, or vessel;State v/s Dev Prakash Page 21 of 29 FIR No. 192/2009
PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:15 +0530 (3) that such building, tent, or vessel, was used as a human dwelling or as a place of worship, or as a place for the custody of property.
(4) the intention to commit an offense punishable by imprisonment at the time of trespass.
15. In view of the above mentioned ingredients, it is necessary to examine whether these ingredients are made out in the present case. It is settled law that house trespass is an aggravated form of criminal trespass and the Sections which follow Section 441 IPC are designed to protect possession as distinguished from title in the sense that the question in whom title to the land or property vests is foreign to the offence.
16. It was held in case titled "Ram Kali Vs. Gaya Prasad (1950) 51 Cri LJ 1167 (AII) : AIR 1950 All 653" that the mere fact that the accused put forward a bonafide claim to the property would not save him from the consequences of the entry into in the possession of the complainant, if his intention was to take the property out of the complainant possession when her consent and to cause wrongful gain to himself or wrongful loss to her.
17. Further, it is settled law that introduction of any part of the trespassers body is "entering" sufficient to constitute house trespass. Every unauthorised entry is not criminal trespass in terms of section 451 IPC. A trespass is not criminal unless one or the other intention specified in the definition is proved. There must be an unauthorised entry into or upon property, unauthorised, i.e. either directly against the State v/s Dev Prakash Page 22 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:21 +0530 will of the person in possession or constructively against his will, in the sense that he who enters has unlawful intention, which, were it known to such person, would make him object, forbid, or prevent the entry that in ignorance of such intention he sanctions and permits. The possession must be actual possession of some other person other than the alleged trespasser. Possession means actual physical possession which includes the right to eject or exclude another person. In the absence of proof of actual physical possession by a person other than the trespasser, the alleged trespasser is entitled to an acquittal. Title of the property in question is completely irrelevant for the purposes of this section and cannot be raised as a defence as the offence is against possession and not against the ownership of the property.
18. Perusal of section 441 r/w section 451 IPC, reveals that it is essential for the prosecution to prove the intent of the accused while such unauthorised entry is made in the Shop. Unless the "intention" referred in section 441 of IPC is proved, no offence of criminal tres-pass can be said to have been committed. It has been well settled that the intention of the offender cannot be proved by any direct or circumstantial evidence and the same has to be gathered from the surrounding circumstances of a particular case. The court is required to consider the totality of facts and circumstances in order to ascertain the intent of the accused.
State v/s Dev Prakash Page 23 of 29 FIR No. 192/2009PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:28 +0530
19. The offence u/s 451 IPC pertains to house tres-pass in order to commit an offence punishable with imprisonment. Thus, the court is required to form an opinion as to whether the house trespass was made with the intent to commit an offence punishable with imprisonment. Such intent of the accused can only be gathered from the facts and circumstances of the case and the mindset of the accused cannot be proved by the prosecution by any direct evidence. In the present case, it is significant to note at the cost of repetition that the accused persons entered the shop of the complainant and articles were lying around the shop.
20. The very fact that the accused persons were found inside the shop of the complainant without any justifiable reason, per se shows that the mens rea of the accused persons was to commit an offence. The mens rea in such cases is required to be gathered from the facts and circumstances of the case and the surrounding evidence which has been established on record by the prosecution. It is common knowledge that shop is a place where valuable properties are kept and the presence of the accused persons at the shop in the absence of the complainant can be due to making illegal gains and for planning to commit an offence. The circumstances under which the accused persons were found inside the shop are quite suspicious. Accused persons were found there when there was nobody else present and would only show that the intention of the accused persons while entering the said shop was to State v/s Dev Prakash Page 24 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:35 +0530 commit the offence of theft. However, the accused failed to give effect to such mens rea and did not succeed in committing the offence of theft. Be that as it may, the evidence led on record has established beyond reasonable doubt that the accused had entered the shop i.e. building used for custody of property with the intent to commit an offence of theft.
21. Now coming to the evidence on record. In order to substantiate the allegations made by the complainant that the accused persons committed house trespass by entering into the shop of the complainant, it is necessary for the prosecution to prove the occupancy of the complainant in the said room. A number of witnesses including PW-1, PW-2 and PW-3 have been examined who had stated that the complainant was running the milk shop since the last 20-18 years in the said premises. Although it is correct that case of the complainant regarding the possession of property in question being with him is also not supported by any documentary evidence. However, even the accused has not filed on record any documentary evidence to counter the case of the complainant. The complainant on the other hand has proved the factum of possession of of property in question being with him through the testimonies of three witnesses i.e. PW 1 to PW 3 excluding himself as also stated above. These testimonies are in consonance with each other and I find no reason to doubt the same especially when the accused persons have failed State v/s Dev Prakash Page 25 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:42 +0530 to bring on record any document or evidence to counter the said testimonies. In these circumstances, I have no hesitation in holding that the complainant has been able to prove on record beyond any reasonable doubt that the possession of property in question was with him uptill date of the incident till the time he realised that the possession has been taken over by the accused persons. Therefore, it can be concluded that a number of witnesses have been cited by the prosecution to prove the occupancy of the complainant in the said premises. The capacity in which the complainant was in possession of the ground floor of property in question is not relevant for deciding the guilt of accused persons in the present case and is accordingly not touched upon.
22. In these circumstances, in my opinion, the essential ingredients of offence of house trespass with the intention to commit offence as punishable u/s 451 IPC are duly proved on record beyond any reasonable doubt against the accused persons. Since, as per the testimony of PW 5 which is corroborated by PW-1, PW-2, and PW 3, all the accused persons were found in possession of property in question on 25.06.2009 ,their common intention is also duly proved on record. Thus all the accused persons are liable for conviction u/s 451/34 IPC.
23. With regard to offence under section 411 IPC against accused Jai prakash, in order to prove the offence, it was for the prosecution to also prove that the property was in State v/s Dev Prakash Page 26 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:49 +0530 possession of the accused; that such property was 'stolen property' i.e. it had been transferred by theft, extortion or robbery, or had been criminally misappropriated and that the accused received the same knowing or having reason to believe the same to be stolen property. In the case at the hand, the accused has not been arrested from the place of the incident itself. No eye-witness has been cited or examined by the prosecution who had seen the accused taking those articles. In respect of the offence under Section 411 of the Indian Penal Code, it was imperative for the prosecution to prove the factum of recovery of the stolen property from the accused. However, the factum of the recovery of the stolen property itself has remained unproved as no independent witness has been joined in the investigation at the time of the alleged recovery as is evident from the perusal of the seizure memo which does not bear the signatures of any public witnesses. No explanation has been furnished by any of the prosecution witnesses as to why two or more respectable persons of the locality were not joined in the investigation at the time of the recovery as required under Section 100 of the Code of Criminal Procedure. The failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency.The omission to join independent witnesses, thus warrant an adverse inference to be drawn State v/s Dev Prakash Page 27 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:28:57 +0530 under Section 114(g) of the Evidence Act that the evidence if produced would have been unfavorable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery of the stolen property from the accused beyond reasonable doubt.
24. That as it may, even if it is assumed that the stolen two plastic crates been recovered from the house of the accused Jai Prakash, the same cannot be said to have been recovered from a place within the exclusive knowledge of the accused so as to link the accused with the commission of the offence under Section 411 IPC. The prosecution evidence as led is conspicuously silent as to the exact place in the house of the accused from where he brought the two plastic crates It is thus possible that the article was in an area/place which belonged to the family of the accused comprising of a and it was thus possible for the accused to have knowledge of the place where the article was kept without him himself being guilty for any offence and hence the mere recovery is not sufficient to justify a conviction under Section 411 of the IPC. Therefore, prosecution has failed to establish the guilt of accused Jai Prakash and thus the said accused is hereby acquitted for the offence punishable under Section 411 IPC.
25. In view of the reasons given above and the evidence on record, the accused persons namely Dev Prakash Bhagel S/o Sh. Balk Das Bhagel, Meena Bhagel W/o Sh. Jai Prakash Bhagel and Jai Prakash Bhagel S/o Sh. Balk Das State v/s Dev Prakash Page 28 of 29 FIR No. 192/2009 PS Bindapur Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:29:04 +0530 Bhagel are convicted for offence u/s 451/34 IPC and acquitted for offence u/s 380/34 IPC. Further, accused Jai Prakash Bhagel S/o Sh. Balk Das Bhagel is acquitted for the offence punishable u/s 411 IPC.
26. This judgment contains 29 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
27. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT Digitally signed by TODAY, i.e., ON 26.08.2025 KRITIKA KRITIKA JAIN JAIN Date:
2025.08.26 16:29:16 +0530 Kritika Jain Judicial Magistrate First Class-03 South-West District/NewDelhi 26.08.2025 State v/s Dev Prakash Page 29 of 29 FIR No. 192/2009 PS Bindapur