Delhi District Court
State vs . Kuldeep Sharma @ Kunnu on 18 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Kuldeep Sharma @ Kunnu FIR NO. : 248/2008, U/s 452/341/506/34 IPC PS : NEW USMANPUR A. CIS No. of the Case : 462230/2015 B. FIR No. : 248/2008 C. Date of Institution : 07.11.2008 D. Date of Commission of Offence : 10.10.2008 E. Name of the complainant : Poonam D/o Rajender Singh Kashyap, R/o C-43/28, Gali No.9, Sudhamapuri, Gamri, Delhi.
F. Name of the Accused, his : Kuldeep Sharma @ Kunnu Parentage & Addresses S/o Subhash Chand, R/o C-
44/35B, Sudhamapuri
Chowk, Gamri, Delhi.
G. Offence complained of : U/s 452/341/506/34 IPC
H. Plea of the Accused : Pleaded not guilty and
claimed trial.
I. Order reserved on : 19.12.2022
J. Date of Order : 18.01.2023
K. Final Order : ACQUITTAL
Brief Statement of Reasons for Decision of the Case
1. The present FIR is based on the complaint of complainant FIR No.248/10 PS New Usmanpur Page No.1 of 14 Poonam D/o Rajender Singh at around 11:30 am accused Kuldeep Sharma @ Kunnu entered the house of the complainant with coercion when her parents were not at home and stopped her way and asked her to take back the case failing which he would kill her. Prior to this case bearing FIR No.71/08, PS New Usmanpur had been lodged by the complainant against the present accused.
2. FIR was registered and has been investigated by the officials of Police Station New Usmanpur and IO/SI Sharif Ahmed filed the charge sheet against the accused upon which cognizance was taken by the Court on 07.11.2008.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Charge was framed vide order dated 18.10.2021 for the offence punishable Under Section 452/341/506 IPC against accused by Ld. Predecessor of this Court to which accused pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 03 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Poonam is the complainant and deposed that a case bearing FIR No.71/08, PS New Usmanpur had been registered by her. She has stated that on 10.10.2008 accused hit her with a knife outside her house in the gali at 02:30 pm when she was FIR No.248/10 PS New Usmanpur Page No.2 of 14 coming back from his tuition. Her uncle Jai Prakash came to her rescue, called her mother and then she was taken to GTB hospital. She has also stated that on 10.10.2008 at 11:32 am accused forcibly entered her house when her mother and father were not present. Accused stopped her and threatened that if she did not take back her case he would kill her. The said witness was cross-examined by Ld. counsel for accused.
(ii) PW2 Ct. Praveen Kumar was handed over original rukka and copy of FIR by Duty Officer HC Dinesh Pathak for handing over the same to SI Sharif Ahmed. Witness was not examined by accused despite giving an opportunity.
(iii) PW3 SI Sharif Ahmed was the IO in the present case and has stated that on 10.10.2008 the complainant came to PS alongwith her parents and gave her complaint on the basis of which tehrir was prepared and FIR was registered. On 11.10.2008 he arrested the accused from the house of his brother-
in-law. He completed the investigation and filed the challan before the Court. Witness was not examined by accused despite giving an opportunity.
6. PE was closed on 04.01.2014 and on 16.01.2014, statement of accused under Section 313 Cr. PC readwith section 281 Cr. PC was recorded and thereafter, matter was fixed for DE. The accused examined only one witness in his defence. Sh. Vicky (DW1) was examined who is the friend of the accused for the last 8-9 years and brother of the complainant Poonam has deposed that her sister lodged a false complaint against the present accused at the instance of their mother. He has also deposed that no such incident as narrated in the FIR has ever FIR No.248/10 PS New Usmanpur Page No.3 of 14 happened and all the allegations are false. The said witness was cross examined at length by Ld. APP for the State. Thereafter, DE was closed on 11.04.2014 and the matter was fixed for final arguments. Vide order dated 28.11.2014 on an application moved by Ld. counsel for accused cross examination of PWs Poonam and Sharif Ahmed was allowed subject to their availability and payment of cost of Rs.3,000/- by the accused to DLSA. Vide order dated 24.11.2022, this Court had observed that PW Poonam was cross examined and discharged on 17.04.2017, however, despite various opportunity presence of PW Sharif Ahmed was not secured. Accordingly, the right to cross examine PW Sharif Ahmed was closed and the matter was again listed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In the present case, the prosecution has argued that the accused has committed offence punishable under S. 452 IPC. The offence under S. 452 IPC, the section reads as follows:
"452. House-trespass after preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The genus can be found in S. 441 IPC which defines the term house trespass. The succeeding FIR No.248/10 PS New Usmanpur Page No.4 of 14 sections are the variations of the criminal trespass defined in s. 441 and are punished as per the requirements of the sections.
Section 441 IPC defines criminal trespass and is as under:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'."
10. In Rajinder v. State of Haryana [(1995) 5 SCC 187 : 1995 SCC (Cri) 852], hon'ble Supreme Court Court observed as under: (SCC pp. 198-99, paras 21-22) "21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case."
11. Dealing with the issue of trespass, hon'ble Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCC (Cri) 315 at page 147 has observed that:
"It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing FIR No.248/10 PS New Usmanpur Page No.5 of 14 so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say:
"We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed."
12. In Matiullah Sheikh v. State of W.B., (1964) 6 SCR 978 :
AIR 1965 SC 132 : (1965) 1 Cri LJ 126, it has been observed that:
"5. It is worth noticing also that house trespass, apart from anything else is made punishable under Section 448 of the Indian Penal Code the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences. An examination of Sections 449, 450, 451, 454 and 457 show that the penalty prescribed has been graded according to the nature of the offence "in order to" the commission of which house trespass is committed. It is quite clear that these punishments for house trespass are prescribed quite independent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not. In our opinion, there can be no doubt that the words "in order to" have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under Section 449 of the Indian Penal FIR No.248/10 PS New Usmanpur Page No.6 of 14 Code. If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under Section 450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457 will apply the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
13. From the above discussion, it can be stated that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
14. In Rash Behari Chatterjee v. Fagu Shaw, (1969) 2 SCC 216, it was observed that:
"The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else FIR No.248/10 PS New Usmanpur Page No.7 of 14 than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
15. In the present case, PW1/Complainant is the prime witness of the prosecution. In her examination in chief dated 19.09.2012 she has stated that on 10.10.2018 the accused had hit her with a knife outside her house in the gali at 2:30 PM while she was coming from her tuition. On her examination in chief dated 03.01.2013 she has deposed that on 10.10.2008 at about 11:32 am accused forcibly entered her house when her parents were not present. The accused stopped her and threatened to kill her if she did not take back her case. During her cross-examination dated 13.04.2017 PW1 has stated that at the time of incident she was studying I class 9th (again said 10th) and her school timings were 7:30 am to 12:30 am. Further during her cross examination dated 17.04.2017 she has voluntarily deposed that accused Kuldeep used to propose her and used to say that if she denies, he would kill her. However, later she has denied the same suggestion given by Ld. Counsel for accused.
16. The testimony of the star witness of prosecution is not corroborated by any other witness. Nothing has been brought on record by the prosecution to show that at the time of incident, PW1 was in physical possession of the property though she has stated that it was her tenanted premises at the time of incident. No documentary proof of possession viz. Electricity bill etc by PW1 has been brought on record. In the circumstances, prosecution has failed to establish the possession of the complainant at C43/28, Gali No. 9, Sudama Puri Delhi -53 at the FIR No.248/10 PS New Usmanpur Page No.8 of 14 time of incident and since the possession has not been established, trespass of the same cannot be said to be done. Accordingly, no offence under S. 452 IPC is made out.
17. The prosecution has also charged the present accused with offence punishable under S. 341 IPC. It reads as:
"341. Punishment for wrongful restraint.-- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Wrongful restraint has been defined as:
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
(Exception) --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section. Illustration A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z."
18. In the present case, PW1/Complainant has deposed that the accused stopped me and threated me to kill. The only deposition is that she was "stopped" by the accused. Nothing other than that has been stated. In the circumstances, proscution has not been able to prove the requisite "wrongful restraint" for offence punishable under S. 341 IPC.
19. Coming to offence punishable under S. 506 IPC. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 FIR No.248/10 PS New Usmanpur Page No.9 of 14 IPC is as under:
"503.Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
20. A reading of the definition of "criminal intimidation"
would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
21. In Manik Taneja v. State of Karnataka, (2015) 7 SCC 423 : (2015) 3 SCC (Cri) 132, it has been observed that:
"It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section."
22. It is the case of the prosecution that the accused persons have criminally intimidated the complainant PW1 and threated to FIR No.248/10 PS New Usmanpur Page No.10 of 14 kill her if she does not take back the case. The incident of knife attack at 2:30 PM on the day of incident came for the first time during the deposition of PW1 in court on 19.09.2012. This was never mentioned even in the statement given to the IO or recorded in S. 161 CrPC statement. The complainant knew the accused from before cannot be denied. An FIR by the complainant against the accused was already pending at the time of incident. It is the case of the prosecution that on the cries of PW1 one Jai Prakash came to rescue her. This Jai Prakash has not been made a witness, no other tenants or people of the locality has been examined. No sufficient explanation has been provided for the presence of victim at her home during the school timings. PW1 has not mentioned the incident of knife attack to anyone before her court deposition.
23. As discussed above, the threat extended by the accused was not with an intent to cause an alarm in the minds of the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the accused persons to cause alarm in the mind of the complainant. Accordingly, offence under S. 506 IPC is not made out.
24. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circum-FIR No.248/10 PS New Usmanpur Page No.11 of 14
stances in question must be satisfactorily estab- lished and the proved circumstances must bring home the offence to the accused beyond reason- able doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
25. In Bhagirath (supra) at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs ex- clusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a consci- entious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly im- possible in any criminal trial to prove all the ele- ments with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the ex- pression "reasonable doubt" is incapable of defi- nition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
26. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by FIR No.248/10 PS New Usmanpur Page No.12 of 14 Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
27. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
28. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."FIR No.248/10 PS New Usmanpur Page No.13 of 14
29. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to prove any document or anything to show her possession at the time of incident required for offence punishable under S. 452 IPC. No restrained for offence punishable under s. 341 has been proved rather the prosecution has only relied on the statement of PW1 complainant wherein she has stated that she was stopped by the accused. The threat extended was not with intention to cause fear in the minds of the complainant. The complainant and the accused were known to each other from before. No offence punishable under S.506 is made out.
30. Thus, in view of the above discussion, the Prosecution has not been able to discharge its burden beyond reasonable doubt. Accordingly, accused Kuldeep Sharma @ Kunnu is found not guilty in the present case and resultantly, stands acquitted in the present case.
31. Accused is directed to furnish bonds in the sum of Rs.10,000/- each with a surety of like amount u/s 437A Cr.P.C and is directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.01.18
16:52:35
+0530
Announced in the open (VIPUL SANDWAR)
Court on 18th January, 2023 MM-02/NE/KKD COURTS
FIR No.248/10 PS New Usmanpur Page No.14 of 14