Delhi District Court
3.Title State vs . Anil & Others on 25 August, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE, EAST
KARKARDOOMA COURT : DELHI
1.FIR No. 178/2005
2.Unique Case ID No. 02401R00572002006
3.Title State Vs. Anil & others
3(A).Name of complainant Smt. Kavita Singh, W/o Sh. Anand
Singh, R/o H.No. C38, Gali No.13,
3rd floor, Madhu Vihar, Delhi.
3(B).Name of accused 1) Anil Kumar, S/o Sh. Puran
Singh, R/o D368, Asha Ram
Gali, Mandawali, Delhi.
2) Sunil Kumar, S/o Sh. Puran
Singh, R/o D368, Asha Ram
Gali, Mandawali, Delhi.
3) Radha @ Upasna, W/o Sh.
Anil Kumar, R/o D368, Asha
Ram Gali, Mandawali, Delhi.
4) Hema @ Hemlata, W/o Sh.
Rajkumar, R/o D1103, Sector
11, Rohini, Delhi
4.Date of institution of challan 09/10/06
5.Date of Reserving judgment Not reserved. Pronounced on the
same day.
6.Date of pronouncement 25/08/14
7.Date of commission of offence 10/03/05
8.Offence complained of Under Section 380/448/341/342/34
IPC
FIR No. 178/2005 State Vs Anil & Others 1 of 18
9.Offence charged with Under Section 380/448/342/34 IPC
10.Plea of the accused persons Pleaded not guilty
11.Final order All accused persons are convicted for
the offence punishable U/s 448 read
with Section 34 IPC and are acquitted
for the offence U/s 380/34 and
Section 342/34 IPC.
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in a narrow compass as per the charge sheet is that on 10.3.2005, when complainant Kavita Singh was alone in her house bearing no. 368, Ambedkar Marg Mandawali, at around 11.00am, accused Sunil and Anil came to her and asked her to sign an agreement of 11 months to which she stated that her husband would sign the same and soon as she had said so, Anil called Radha and Hema and Sunil and locked her in the room and took out her articles from the room and locked the room. It is further the case that the accused persons have committed theft of cylinder, cooler and the fan belonging to the complainant. Thus it is the case of the prosecution that the accused persons have committed the offence of criminal house trespass, theft in property used as human dwelling, wrongful restraint and wrongful confinement of the complainant and thus have committed the offences U/s 448/34, 380/34, 341/34 and 342/34 IPC.
FIR No. 178/2005 State Vs Anil & Others 2 of 18
2. The Charge sheet was filed in the Court on 9.10.2006 and after compliance of the provisions of Section 207 Cr.P.C. and after hearing parties, charge for the offence punishable u/s 448/34, 380/34 and 342/34 IPC was framed on 30.1.2008, against all the accused persons by the Ld. Predecessor of this Court , to which they pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case against the accused persons in total has examined as many as 10 witnesses i.e. PW1 Smt. Kavita Singh: who is the complainant in the present matter, PW2 Ct. Brijpal, PW3 HC Om Prakash Singh, PW4 HC Ghanshyam, PW5 Lady Constable Anita, PW6 HC Prem Pal Singh, PW7 Retd. SI Khyali Ram, PW8 Sh. Vipin: Photographer, PW9 SI Anita and PW10 Sanjay: Public witness.
4. In the present matter witness Madhu Singh was dropped from the list of witnesses vide order of the Court dated 16.1.2014 as despite ample opportunities the investigating agency and the prosecution has failed to produce the said witness before the Court .
5. PW1 Smt. Kavita Singh, is the complainant and has deposed that on 10/3/2005 at about 11.00am, she was alone at her house at 368, Ambedkar Marg, Mandawali and Sunil and Anil came to her house and had brought a paper and asked her to sign FIR No. 178/2005 State Vs Anil & Others 3 of 18 on the same and stated that it was an 11 month agreement. It was deposed by the witness that the accused Sunil and Anil were the sons of her landlord and were harassing her for a long time for getting the tenanted house vacated. It was further deposed by the witness that she told them to come in the evening in the presence of her husband, however, they both called accused Hema and Radha and all the accused caught hold of her and locked her inside the room and her household articles were thrown out of the room. It was further deposed by the witness that when she lodged the complaint her cylinder, cooler and fan were found missing. It was further deposed by her that all of them had turned her out of the house and had locked the house and had ran away from there. The witness further deposed that her statement was recorded by the police Ex. PW1/A which bore her signature at point A. The witness correctly identified all the accused persons present before the Court at the time of her deposition. It was further deposed by the witness that during the bail application she got the cheque of Rs. 15,000/ in lieu of her missing articles.
6. The witness was cross examined by Ld. Counsel for accused, wherein it was deposed by her that she had informed the police two to two and a half hours after the incident through a PCO. It was further deposed that the police left the spot from outside only and FIR No. 178/2005 State Vs Anil & Others 4 of 18 had not inquired from the PCO Owner. It was further deposed that she was locked in the room for about 1½ hours and then she was turned out of the house.
7. It was further deposed by the witness that she was having one cooler and two gas cylinders and three ceiling fans out of which two ceiling fans were installed in the ceiling and one was lying unused in the room. It was further deposed that the cooler was not kept outside the house, but was kept inside the house and then the accused persons locked the house and ran away. It was further admitted by the witness that in the photographs taken by the IO gas cylinder is shown in first photograph Ex. P1. It was further deposed that she had given the list of stolen articles to the police.
8. PW2 Ct. Brij Lal has deposed that accused Anil was formally arrested by the IO and was released on bail in his presence.
9. PW3 HC Om Prakash Singh has deposed that he has went alongwith the IO on the day of incident to the place of occurrence where IO recorded the statement of the complainant prepared rukka and got the case registered through him. It was further deposed that IO took the photographs of the spot and prepared the site plan and recorded the statement of witnesses and searched for accused persons, but they were not found.
FIR No. 178/2005 State Vs Anil & Others 5 of 18
10. In his cross examination, it was deposed by the witness that the statement of witnesses were recorded by the IO after receiving the rukka.
11. PW4 HC Ghanshyam has deposed that accused Upasna, Hemlata and Sunil were arrested formally in his presence.
12. PW5 Lady Constable Anita has deposed that accused Upasna and Hemlata were formally arrested and were personally searched in her presence.
13. PW6 HC Prem Pal Singh has deposed that accused Anil was arrested in his presence.
14. PW7 Retd. SI Khyali Ram is the IO of the present matter he has deposed that on 10.3.2005 on receipt of DD No. 20 A, he alongwith Ct. Om Prakash reached at the spot, where they found that the household articles were lying outside the house and they met the complainant and recorded her statement Ex. PW1/A bearing the signatures of the witness at point X, thereafter he prepared rukka Ex. PW7/A bearing his signatures at point X and handed over the same to Ct. Om Prakash for registration of FIR. He prepared the site plan Mark A. It was deposed that after preparing site plan he had sent Ct. Om Prakash for getting the case registered by handing the rukka. It was further deposed that the premises FIR No. 178/2005 State Vs Anil & Others 6 of 18 were inspected and some articles were spread and he got the scene of occurrence photographed. It was further deposed that however, the SDM refused to give the permission to seize the articles and he recorded the statement of witnesses. It was further deposed that after completion of investigation, he has filed the charge sheet before the Court .
15. In his cross examination by the counsel for the accused persons, it was deposed by the witness that he had only inquired from one person and recorded his statement and had not given any notice to the other persons present. It was admitted by the IO that the dispute took place in a residential area. It was further deposed that at the time of recording of the statement, the complainant had not given any separate list of articles and had later sent the list. It was further deposed by the witness besides the cooler, cylinder and ceiling fan were missing, however, the complainant had not given any document regarding ownership of cylinder, cooler and ceiling fan.
16. PW8 Sh. Vipin is the photographer and has exhibited the photographs on record Ex. P1 to Ex. P7 and negatives as Ex. P8 to Ex. P14 and had stated that these photographs were developed in his Lab.
FIR No. 178/2005 State Vs Anil & Others 7 of 18
17. PW9 SI Anita is the duty officer and has proved before the Court the endorsement on rukka Ex. PW9/A and registration of FIR 178/2005 Ex. PW9/B (OSR). In his cross examination the witness has admitted that the copy of the rukka Ex. PW9/D1 which is there with the accused persons, her signatures are not there and the endorsement is also not there.
18. PW10 Sh. Sanjay has stated before the Court that he does not know anything regarding the present case. The said witness was cross examined by Ld. APP for State with the permission of the Court wherein it was deposed by the witness that police has never inquired from him regarding the incident, though he was a tenant at the suit property and complainant was also a tenant in said property and the accused persons were the house owners and the relatives of the house owners. The witness further identified the house and the complainant from the photographs Ex. P1 to Ex. P7.
19. As it is was submitted by Ld. APP for State that no other witness remains to be examined in the present matter, prosecution evidence was closed vide order of the Court dated 16.1.2014 and the matter was fixed for statement of accused persons.
20. Thereafter, all the accused persons were examined U/s 313 Cr.P.C. read with Section 281 Cr.P.C. by the Court on 1.5.2014 FIR No. 178/2005 State Vs Anil & Others 8 of 18 wherein all the incriminating material on record was put to the accused persons, to which all of them have stated that they are innocent and have been falsely implicated in the present matter. As it was submitted by the accused persons that they do not wish to lead any evidence in their defence, therefore the matter was fixed for final arguments.
21. I have heard the arguments as addressed by the Ld. APP for the state and Ld. counsel for the accused persons and perused the entire material available on record.
22. It is a settled legal principle that the prosecution has to prove its case beyond the shadow of the reasonable doubt and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused had a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
23. In the present case in hand the accused persons are charged by the Ld. Predecessor of this Court for the offence of criminal trespass, theft in property used as human dwelling and wrongful confinement of the complainant.
FIR No. 178/2005 State Vs Anil & Others 9 of 18
24. In order to prove the offence of wrongful confinement it has to be established before the Court that the complainant/injured was wrongfully confined i.e. she was wrongfully restrained in such a manner so as to prevent her from proceeding beyond certain circumscribing limits. The said act was done by all the accused persons either collectively or by one of them in furtherance of the common intention of all.
33. In the present case in hand perusal of the deposition of the complainant CW1 Smt. Kavita Singh shows that she has stated in her examination in chief that all the accused persons caught hold of her and locked her inside the room and threw out all her household articles out of the room and some of the articles which could not be thrown by them remained in the room. No time gap is stated by the complainant in her examination in chief between the act of the accused persons by which the complainant was confined in the room and the acts by which the articles were thrown out of the room. More so, in her cross examination it is deposed by the complainant that she was locked in the room for about 1½ hours and then she was turned out of the house. However, perusal of the entire testimony of the prosecution witnesses, does not make it clear as to what was the composition of the rented house in possession of the complainant, how many rooms were there in the FIR No. 178/2005 State Vs Anil & Others 10 of 18 house. It is deposed by the IO that he has not went inside the room which was closed and the said room was in the first floor. It was deposed by him that he had only seen and checked the objects lying in the open room. Perusal of the photographs filed and exhibited on record also show that the complainant was sitting outside the house and the PCO is only a few yards away. Nothing has come out on record which can show that the complainant was confined in a room and then the articles were thrown out of the house. The site plan filed and exhibited on record as Mark A is not explanatory with respect to the same as it is only depicting that area wherein the articles belonging to the complainant were lying.
34. Keeping in view all these factors into consideration i.e. the nonexplanatory site plan with respect to the place where the complainant was allegedly confined and that the deposition of the complainant or of the IO does not disclose the composition of the rented house belonging and in possession of the complainant, the nonmentioning of any time gap between the averment of locking of the complainant in the room and throwing out her articles from the room, this Court is of the considered opinion that the deposition of the complainant with respect to her wrongful confinement at the very same time when her articles were thrown out does not inspire confidence. This finding also gets FIR No. 178/2005 State Vs Anil & Others 11 of 18 substantiated in view of the descriptory deposition of the complainant regarding what household articles were left inside the house and what were thrown outside the house and in what manner were they thrown out. Further more, a bare reading of deposition gives an indication that there was a room only in possession and therefore, the allegations of the complainant being locked inside and articles being thrown out of the room without any time gap does not hold force as only one of the things could happen at a particular point of time.
35. In view of the above said discussions and findings, the deposition of complainant is not inspiring confidence with respect to her wrongful confinement and the prosecution is not been able to prove beyond the shadow of all reasonable doubts that the complainant was wrongfully confined by the accused persons.
36. In order to prove the offence of theft in dwelling house, it has to be established before the Court that the accused persons with the intention to take dishonestly any movable property out of the possession of the complainant without the complainant's consent moved that property, in order to such taking, from the house of the complainant.
37. It is deposed by the complainant in her examination in chief that when she lodged her complaint her cylinder, cooler and ceiling FIR No. 178/2005 State Vs Anil & Others 12 of 18 fan were found missing and the accused persons had turned her out of the house and locked the house and ran away from there. It was deposed by the IO that when he reached the spot, the main gate of the house was open and only one room was closed and he did not got the room opened which was closed. It was further deposed by him that when accused Anil was arrested he was asked to open the closed room, which when opened no article was found lying in the room.
38. In her cross examination it is deposed by the complainant that she was having one cooler, three ceiling fans and two gas cylinders out of which two ceiling fans were installed and one ceiling fan was lying unused in a room and both the gas cylinders and both the ceiling fans were lying unused n the room. It was further deposed that both the ceiling fans, both the gas cylinders and articles of almirah were kept lying in the room. The almirah was made empty by the accused persons and thereafter, the empty almirah alongwith cooler and other articles was kept outside the house. It was deposed that the cooler was kept inside the house and then the accused persons locked the house and ran away.
39. Perusal of the photographs Ex. P1, show that there is no cooler lying outside the house and one gas cylinder is lying outside the house.
FIR No. 178/2005 State Vs Anil & Others 13 of 18
40. Combined reading of the testimony as the complainant and the IO goes contradictory with respect to theft of cooler as firstly it is deposed by the complainant that when she checked the articles, the cooler was found missing. In the cross examination it was deposed that the cooler was left inside the house which was locked and the IO has deposed that when he had opened the lock in presence of accused Anil, nothing was found in the room. In the same vein it is deposed by the complainant that the both the cylinders were kept lying in the room alongwith the ceiling fans and articles of almirah. However, it is deposed by the IO that when he opened the room it was empty. Moreso, the photographs are also showing that one of the cylinders is outside the house. Thus, one statement is contradicting the other. More so, it is deposed by the IO that the complainant had not shown any ownership proof of said articles. Though the ownership proof of the normal house hold articles is difficult to procure, however situation is different with respect to the gas cylinders as they are supplied by gas agencies and their possessory proof can be easily shown by the prosecution which the prosecution has failed to do so.
41. Further more in order to prove the offence of theft, only moving of the property by the accused persons without the consent of the complainant is not essential. It has to be further proved that FIR No. 178/2005 State Vs Anil & Others 14 of 18 there was a dishonest intention to take the movable property out of the possession of the complainant and the property was moved with that intention. This intention is not proved in deposition of the prosecution witnesses.
42. In view of the above said discussions and findings, the prosecution has not been able to prove beyond shadow of all reasonable doubts that accused persons have committed theft of articles as alleged from the dwelling house of the complainant.
43. In order to prove the offence of house trespass, it has to be established by the prosecution before the Court that the criminal trespass was done by the accused persons by entering and remaining in the house of the complainant. The prosecution has to prove that the accused persons entered into the house of the complainant and they did so with an intent to commit an offence or to intimidate, insult or annoy the complainant.
44. PW10 Sanjay was a prosecution witness, however, was declared hostile by the Ld. APP for the State to the case of the prosecution, as he deposed that he did not know anything about the matter and was not present at the spot at the time of the incident. It was however, admitted by the said witness that the complainant was a tenant at H.No. 368, Ambedkar Marg, Mandawali and the accused persons were either the house owners or relative of the FIR No. 178/2005 State Vs Anil & Others 15 of 18 house owner. It was further deposed that there was a regular issue between the parties with respect to tenancy and the rent. The witness further identified his room shown in the photographs Ex. P1 to Ex. P7. Thus the deposition of this witness proves before the Court besides the deposition of the complainant and the IO that there were landlordtenant relationship between the accused persons and the complainant and there were issues with respect to tenancy and rent.
45. The photographs Ex. P1 to Ex. P7 are also exhibited and proved on record. Nothing has come out in the cross examination of any of the prosecution witnesses so as to assail the credibility of these photographs before the Court . These photographs clearly show that the complainant is sitting outside the house which is locked and the articles belonging to the complainant are lying outside the house.
46. The complainant has categorically deposed that she was turned out of the house by all the four accused persons and all her household articles were thrown out of the house by the accused persons and the house was locked. IO has also deposed that when he reached the spot, he got the scene of occurrence photographed and found that the articles were spread there. It was further deposed by him that the locked room was opened by accused Anil FIR No. 178/2005 State Vs Anil & Others 16 of 18 in his presence after his arrest. Nothing has come out in the cross examination to assail this aspect of the deposition of the prosecution witnesses.
47. In view of the above said discussions and findings, the prosecution is able to prove before the Court beyond shadow of all reasonable doubts that the accused persons have criminally trespassed into the room of the complainant and have thereby caused annoyance and intimidation and insult and have forcibly vacated the room in the possession of the complainant. Though, the specific and exact role done by each of the accused persons is not brought on record, however, it is established that the said criminal act was done by all the four accused persons in furtherance of the common intention of all and therefore, each of the accused persons is liable for the said act in the same manner as if it was done by him or her alone.
48. In view of the above said discussions and findings it is held that the prosecution has been able to prove beyond shadow of all reasonable doubts that the accused persons have committed the offence of house trespass in furtherance of their common intention.
49. Hence the accused persons are convicted for the offence U/s 448/34 IPC.
FIR No. 178/2005 State Vs Anil & Others 17 of 18
50. Convicts be heard separately on the quantum of sentence for the offence punishable U/s 448/34 IPC.
49. Copy of judgment be supplied to the convicts free of cost.
Announced in the (Neha Paliwal)
Open Court on 25.8.2014 Metropolitan Magistrate
KKD,Delhi
It is certified that this judgment contains 18 pages and each page bears my signature.
(Neha Paliwal) Metropolitan Magistrate KKD,Delhi/25.8.2014 FIR No. 178/2005 State Vs Anil & Others 18 of 18 FIR No. 178/2005 State Vs Anil & Others 19 of 18 FIR No. 178/2005 State Vs Anil & Others 20 of 18