Delhi District Court
3.Title State vs . Saira Bano And Ors. on 25 May, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. FIR No. 36/1999
2.Unique Case no. 462951/2015
3.Title State Vs. Saira Bano and Ors.
3(A).Name of complainant Santosh Kumari
W/o Late Sh. Bhure Shanker Gautam
R/o H. No. C-451, Gali no. 20, Bhajanpura, Delhi
3(B).Name of accused 1) Saira Bano
W/o Late Sh. Rasool Khan.
2) Anish Ahmed
S/o Late Sh. Rasool Khan
Both R/o Sukhbir Gujjar's House, New Sabhapur,
Karawal Nagar, Delhi
4.Date of institution of chargesheet 05.01.2001
5.Date of Reserving judgment 04.05.2023
6.Date of pronouncement 25.05.2023
7.Date of commission of offence Intervening night of 02/03.01.1999
8.Offence complained of U/s 448 IPC
9.Offence charged with 1)Accused Saira Bano was charged with offence
punishable under Section 457 IPC and 380 IPC
2)Accused Anish Ahmed was charged with offence
punishable under Section 380 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order 1)Accused Saira Bano acquitted under Section 457
IPC and 380 IPC
2)Accused Anish Ahmed acquitted under Section 380
IPC
12. Date of receiving of judicial file in this 05.01.2001
court
State Vs. Saira Bano and ors. Page 1 of 16 FIR No. : 36/1999
Argued by :- 1. Ld. APP for the State.
2. Sh. Umesh Mishra, Ld. Counsel for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Ms. Santosh Kumari stating that on the night of 02.01.1999, accused Saira Bano broke open the lock of her property and entered into the same. She stated that she got to know about the incident on the morning of 3 Jan. Further, she alleged that her another house was sealed by the order of SDM Seelampur on 22.12.1998 and thereafter the accused has entered her house situated at Gamri. On the basis of said complaint, FIR bearing no. 36/1999, PS Bhajanpura was registered in the present matter under Section 448 of IPC. Thereafter on the basis of supplementary statement of the complainant, offence under Section 380 IPC was added. After completion of investigation, chargesheet was filed on 05.01.2001.
2. On 05.01.2001, copy of chargesheet was supplied to the accused persons. Thereafter on 19.04.2001, charge was framed against the accused persons to which they pleaded not guilty and claimed trial. Charge under Section 457/380 IPC was framed against accused Saira Bano and charge under Section 380 IPC was framed against accused Anish Ahmed. Matter was thereafter notified for prosecution evidence.
3. Prosecution had named 11 witnesses in chargesheet. Complainant Santosh was examined as PW1. In her examination in chief, she deposed that on 02.01.1999, she had gone to her parental home. Thereafter on 03.01.1999, she received telephonic intimation from her father in law that accused Saira Bano and Anish Ahmed have committed house trespassed and put their lock on the door of her house. Hence, she called police. However, accused persons stated to the police that they are residing as a tenant in the said house for the last 15 years. She also State Vs. Saira Bano and ors. Page 2 of 16 FIR No. : 36/1999 filed complaint Ex. PW1/A in this respect. However, the case was registered by the police after 18 days i.e. 21.01.1999. She stated that the accused persons broke open the lock of her house and removed her household articles. She also identified the accused persons present in the Court. She further deposed that she also obtained order dated 30.09.1999 from SDM, Seelampur regarding the impugned property in her favour. Certified copy of the said order is Ex. PW1/B. She also filed certified copy of GPA, agreement and electricity connection of impugned property bearing no. A-234/10, Gamdi Extention, Delhi which is Ex. PW1/C collectively. In her cross examination, she stated that after the death of her husband, she was only occasionally residing at property bearing no. A- 234/10, Gamdi Extention, Delhi. She also stated that she is enrolled as a voter at her other address i.e. C-451, Bhajanpura as she was married at the said address. She conceded that electricity bill Mark AX does not belong to her as the property mentioned in the bill is not her. She also admitted that receipt no. 6693 annexed with Ex. PW1/C does not bear the property no. She also admitted that on 28.12.1998, accused Saira Bano had filed a civil suit against her. The certified copy of the same is Ex. PW1/X and the copy of the written statement is Ex. PW1/X1. She denied the suggestion that accused Saira was the tenant in the said premises. She further stated that the civil suit of the accused was dismissed in the year 1999. She denied the suggestion that accused Saira Bano was the employee at her father in law address. She admitted that Ex. PW1/X5 bears her signature at point X5. She denied that documents Ex. PW1/C does not pertain to property bearing no. H. No. A-234/10, Gamdi Extention, Delhi. (However, she was recalled for evidence in view of amendment of charge vide order dated 13.03.2014. Inadvertently in the charge previously framed, it was stated that the trespass had occurred at C-451, Gali no. 20, Bhajanpura, Delhi whereas incident is alleged to have happened at H. No. A-234/10, Gamdi Extention, Delhi.) Thereafter, on 06.08.2018, she was cross examined again by the Ld. Counsel for both the accused wherein she denied that the accused persons had State Vs. Saira Bano and ors. Page 3 of 16 FIR No. : 36/1999 been employed with her father in law. She further stated that she received information between 09.00 a.m. to 11.00 a.m. that accused persons had committed trespass in the house though she could not tell who had informed her. She admitted that she has not mentioned in her complaint Ex. PW1/A, the complete address regarding which the complaint has made. She also admitted that as per the direction of the SDM, both the properties were sealed in the year 1998 and the second property was again sealed in the year 1999. She denied the suggestion that she has been falsely implicated the accused persons.
4. ASI Dharam Singh was examined as PW2. He has deposed that on 22.01.1999, at about 05.00 p.m. the concerned SHO, gave him rukka for registration of FIR and on the basis of said rukka, he registered the FIR number 36/1999 under Section 448 of IPC and the carbon copy of the same was Ex. PW2/A. He also made endorsement on rukka which is Ex. PW2/B. He was not cross examined by the Ld. Counsel for the accused persons despite opportunity being given.
5. PW 3 is Ct. Manju Sharma. She deposed that accused Saira Bano was arrested by arrest memo Ex. PW3/B on 21.01.2001 after conducting her personal search. She further stated that disclosure statement of accused Saira Bano Ex. PW1/C was recorded by the IO in her presence. In her cross examination, she stated that she cannot tell the exact time of arrest of accused. She denied that she is deposing falsely at the instance of IO and the complainant.
6. Smt. Rajeshwari was examined as PW 4. She deposed that she is residing at 236 Gamdi Delhi for the past 20 years and the complainant was residing in her neighbourhood. He stated that complainant Santosh had locked the premises. However, one morning, she saw that the lock was opened and accused Saira and Anish were found at the premises whereas the lock was intact on the previous night. As she was resiling from her previous statement, she was confronted by State Vs. Saira Bano and ors. Page 4 of 16 FIR No. : 36/1999 the Ld. APP for the State with portion A to A of the statement Mark X but she denied that the accused Saira had informed her that she is residing in the premises as a tenant. In her cross examination by the counsel for accused, she stated that accused Saira Bano was residing at the same locality as her and even her children were born in her presence. She stated that she also had visiting terms with complainant Santosh. She stated that complainant Santosh had come to the premises on the next day but she could not tell who had informed the complainant. She expressed lack of knowledge regarding the articles which were kept in the said premises. She denied the suggestion that she is deposing falsely at the instance of the complainant. She was also recalled for evidence in view of amendment of charge. In her cross examination dt. 27.08.2018, she stated that accused Anish and Saira Bano used to reside as tenants in the property of her relative Omi. She further stated that accused persons used to purchase milk for around 15 days. She expressed lack of knowledge regarding the fact if the house of the complainant Santosh was sealed by SDM concerned or not.
7. Santu was examined as PW 5. He deposed that the accused Saira Bano present in the court was residing at the house of the complainant as tenant. He further stated that complainant had informed him that the accused was not vacating the premises. He also denied that any incident took place in his presence. As the witness was resiling from his previous statement, he was confronted by the Ld. APP for the State with his previous statement Mark X dated 20.08.2000. He denied the suggestion that he is deposing falsely at the instance of the accused. He further denied that statement Mark X was recorded at his instance. He was not cross examined by the accused persons.
8. SI Sanjeev Sharma was examined as PW 6. He is the first IO of the present matter. He has deposed that on 22.01.1999, he received the carbon copy of the FIR already Ex. PW2/A and complaint already Ex. PW1/A for investigation.
State Vs. Saira Bano and ors. Page 5 of 16 FIR No. : 36/1999 Thereafter, he alongwith Ct. Virender went to the house of the complainant Santosh. Thereafter, they alongwith the complainant Santosh Devi reached the spot i.e. A 234/10, gali no. 15, Gamdi and the house was found closed. On knocking, Ms. Shehnaz, daughter of accused Saira Bano opened the door and stated that her mother was not present. Thereafter he prepared site plan Ex. PW6/A at the instance of complainant and also recorded the statement of neighbours Santa and Rajeshwari. Thereafter, on 23.01.1999, he obtained the address of Shehnaz from her school and the same is Ex. PW6/B. The address of daughter of accused was found as New Sabha Pur. On 25.03.1999, he sealed the property in question in view of order dated 22.03.1999 passed by SDM, Seelampur. Further, he also applied to Department of Food and Supply to verify ration card no. 715, Shop no. 8021 in the name of accused no. 2 Mohd. Anish vide application Ex. PW6/C and the same was received by concerned officer Ex. PW6/D. Thereafter, he stated that the investigation was transferred from him. In his cross examination by the counsel for accused persons, he stated that complaint dt. 03.01.1999 was received by him on 22.01.1999. He stated that he reached the spot i.e. A 234/10, gali no. 15, Gamdi at about 06.30 p.m. on 22.01.1999. He denied the suggestion that he did not record the statement of Rajeshwari and Santu or that he never conducted any investigation in the present matter. He further stated that he inspected the property before sealing it and all the articles which were lying there were seized and the key was handed over to MHC(M). He stated that accused Saira Bano was present at the time of sealing and signatures were taken on the seizure memo of the accused. He could not record the statement of Vice Prinicipal of daughter of accused. He further conceded that no allegation of theft was made till the time he was investigating the matter and the complainant had not informed him that the articles belongs to her at the time of sealing.
9. HC Kushpal was examined as PW 7. He is the arrest witness. He has deposed State Vs. Saira Bano and ors. Page 6 of 16 FIR No. : 36/1999 that accused Anish was arrested in the present matter on 09.08.2000 by the IO and disclosure statement of the accused Ex. PW7/A was recorded by the IO. He further stated that personal search of the accused was conducted vide Ex. PW7/B. He also stated that IO recorded his statement. In his cross examination, he conceded that he cannot recall the place from where the Anish was arrested. He admitted that no public persons were joined at the said time for the investigation.
10. SI Saheb Singh was examined as PW 8. He has deposed that on 23.10.1999, he received order of SDM, Seelampur, Mark A regarding desealing of property bearing no. A 234/10, gali no. 15, Gamdi.
11. Sh. B. D. Sharma was examined as CW 9. He stated that on 21.10.2000, he was posted as Reader to SDM, Seelampur and IO had inquired from him regarding order dated 30.09.1999. The said order is Mark A and he identified the signature of concerned SDM at point Z. In his cross examination, he stated that he has no personal knowledge of the case. He further stated that the concerned SDM was having sound health.
12. Inspector K. P. Sah was examined as PW 9. He is the second IO of the present matter. He stated that on 27.01.2000, complainant handed over copy of order of SDM and he seized the same vide seizure memo Ex. PW9/A. He further stated that accused Anish was arrested on 09.08.2000 vide arrest memo Ex. PW9/B. He recorded his disclosure statement and conducted his personal search. He further stated that on 11.10.2000, he seized the copy of GPA and receipt in favour of complainant Santosh vide seizure memo Ex. PW9/C. He also stated that during investigation, he recorded the statement of Santu, Rajeshwari, ASI Saheb Singh, Ct. Kushpal and B. D. Sharma and thereafter, completion of investigation, he prepared the chargesheet. He correctly identified the accused present in the State Vs. Saira Bano and ors. Page 7 of 16 FIR No. : 36/1999 court. In his cross examination, he stated that there is no recovery of case property from accused Anish Ahmed. He stated that the accused had disclosed that he had sold the property in the scrap market near Lal Quila. He further stated that the complainant and the accused had informed him that the complainant had given her previous house on rent to the accused though he could not remember the details of the said house. He further stated that he has not visited the previous house of the complainant during the investigation. He denied that he is deposing falsely in this regard.
13. Statement of accused Saira Bano and Anish Ahmed were recorded on 29.08.2022 under Section 313 Cr. PC wherein they denied the allegations. Accused Saira Bano stated that she was residing in the property bearing no. A 234/10, gali no. 15, Gamdi as a tenant of the complainant alongwith her family and she was falsely implicated in the present matter. Accused Anish Ahmed has also denied the allegations against him.
14. Thereafter, matter was fixed for defence evidence. Accused Saira examined herself as a witness. She stated that she was residing as a tenant in the house of complainant Santosh Devi i.e. A-234, Gali no. 15, Gamdi, Delhi since the year 1993. No written agreement was prepared in this regard nor any receipt was issued in this regard by the complainant. However, her ration card was prepared from said address and the certified copy of the same is Ex. DW1/1. Photocopy of oil card is Mark DW1/2. She further stated that she never left the house of the complainant and a false case has been filed by the complainant stating that she had broken the lock of the house of the complainant. She further deposed that she also filed complaint against the complainant on 02.01.1999 that complainant wishes to forcefully vacate her from the house. The original complaint is Ex. DW1/3. She had also filed a civil suit against the complainant and the photocopy of the complaint is Mark DW1/4. Some dispute arose between the complainant State Vs. Saira Bano and ors. Page 8 of 16 FIR No. : 36/1999 and her son in law i.e. accused no. 2 Anish Ahmed regarding a plot situated at New Sabhapur and therefore the complainant has filed a false case against her and relied upon copy of order under Section 145 Cr. PC in this regard which is mark DW1/5. She denied the suggestion that on the intervening night on 02- 03.01.1999, she broke open the house no. A-234/10, Gali no. 15, Gamdi Extension Delhi. She denied the suggestion that on the said date, she committed theft of beddings, one kitchen stove and utensil and other articles. She denied the suggestion that she never resided at A-234/10, Gali no. 15, Gamdi Extension Delhi as a tenant.
15. Thereafter matter was fixed for final arguments. I have heard the submissions of both the parties and perused the material on record. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
16. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law. Now, theft is defined under section 378 IPC and theft in dwelling house is defined under section 380 IPC. Both the provisions are reproduced hereunder:
Section 378 IPC: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Section 380 IPC: Theft in dwelling house, etc.--Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
17. From the aforesaid definition it is clear that the essential ingredients of theft are:
State Vs. Saira Bano and ors. Page 9 of 16 FIR No. : 36/1999
a) Moving of moveable property out of possession of a person
b) Absence of consent of the person
c) Dishonest intention in so moving and at the time of moving
18. A person can be said to have dishonest intention if in taking the property it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It is further clear that the gain or loss contemplated need not be a total acquisition or total deprivation. It is enough if it is temporary retention of the property by the person so gaining or temporary keeping out of property from the person legally entitled. Hence, theft under Indian Penal code is different from English Law of larceny which contemplates permanent gain or loss (Ramesh Chander Sanyal Vs. Hiru Mondal (1890) 1LR 17 Cal 852 relied upon). Further, theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling is an aggravated form of theft because it intimidates causes fear to the people living in the house. Thus, for the offence punishable under section 380 IPC, the following facts are required to be proved by the prosecution:
a) Moving of articles i.e. beddings, one kitchen stove and utensil and other household articles.- of the complainant Santosh kumari out of his possession
b) Such moving was without consent of Santosh kumari
c) Accused had dishonest intention in such moving
d) Articles were moved out of dwelling house of complainant i.e. A-
234/10, Gali no. 15, Gamdi Extension Delhi
19. Now with respect to the offence of house trespass, the relevant sections are reproduced hereunder:
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"
State Vs. Saira Bano and ors. Page 10 of 16 FIR No. : 36/1999
442. House trespass.: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass: Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass"
444. Lurking house-trespass by night: Whoever commits lurking house- trespass after sunset and before sunrise, is said to commit "lurking house- trespass by night".
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
20. From the above, it is clear that intention to commit an offence is an essential ingredient. Mere occupation even if illegal cannot amount to criminal trespass(1983 CRI. L. J. 173 Kanwal Sood v. Nawal Kishore relied upon). Intention to insult or annoy person in possession of property is essential ingredient.Criminal trespass would also cover act of unlawfully remaining in property belonging to another - But such act of remaining in property of another would be criminal trespass only if accompanied by criminal intent. Further if there is no evidence of criminal trespass, no offence of house trespass could be said to be established. It is also important that complainant must be in unquestionable possession of property at time of trespass alleged (1996 CRI. L. J. 256 State of Goa v. Pedro Lopes).
State Vs. Saira Bano and ors. Page 11 of 16 FIR No. : 36/1999
21. The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when S. 441 Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. 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 of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry. (AIR 1964 SUPREME COURT 986 "Mathri v. State of Punjab" relied upon).
22. Coming to the merits of the case, I find that there are material contradictions in the testimonies of prosecution witnesses. Firstly, PW1/complainant has in her examination in chief has deposed that on 02.01.1999, she had gone to her State Vs. Saira Bano and ors. Page 12 of 16 FIR No. : 36/1999 parental home. Thereafter on 03.01.1999, she received telephonic intimation from her father in law that accused Saira Bano and Anish Ahmed have committed house trespassed and put their lock on the door of her house. Hence, she called police on the same day. But the first complainant made in this regard, was made in the PS on 07.01.1999 as per the endorsement of PS on the complainant. There is no averment in the testimony of complainant or any other prosecution witness that though complainant made the complaint on 03.01.1999 but it was not received in the PS. In her cross examination, she has admitted that she received information between 09.00 a.m. to 11.00 a.m. on 03.01.1999 that accused persons had committed trespass in the house. Hence, this delay of 4 days in making the complainant has remained unexplained. Though delay in itself is not fatal but in the context of present matter where the parties are known to each other and had disputes with respect to properties going on, delay in lodging the complaint raises doubt on the prosecution version. Further, testimony of complainant is inherently inconsistent making the prosecution case unreliable. She admitted that she has not mentioned in her complaint Ex. PW1/A, the complete address regarding which the complaint has made. She also admitted that as per the direction of the SDM, both the properties were sealed in the year 1998 and the second property was again sealed in the year 1999 in view of dispute between the parties. She conceded in her cross examination that electricity bill Mark AX does not belong to her as the property mentioned in the bill is not her. She also admitted that receipt no. 6693 annexed with Ex. PW1/C does not bear the property no. It is also pertinent to note that PW6/1St IO of the case has categorically deposed that on 22.01.1999, he reached the spot i.e. A 234/10, gali no. 15, Gamdi at about 06.30 p.m. He further stated that he inspected the property before sealing it and all the articles which were lying there were seized and the key was handed over to MHC(M). So once the property had been sealed, there is no question of accused persons entering the property. It is not the case of the prosecution that the seal State Vs. Saira Bano and ors. Page 13 of 16 FIR No. : 36/1999 was tampered with or the door was broken by the accused persons to remove the articles. Thus, from his testimony, it is clear that there are material holes in prosecution version and there is no direct evidence of theft. No recovery has been made from the accused persons. Disclosure statement cannot be read in evidence in view of bar under section 25 Indian Evidence Act. Further, the State also cannot take aid of Section 27 Indian Evidence Act as there is no recovery in pursuance of the disclosure statement. In appreciating a case based on circumstantial evidence, it is well settled that one circumstance by itself may not unerringly point to the guilt of the accused and it is the cumulative result of all the circumstances which are to be seen. Thus, there must be a chain of evidence where no reasonable ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused. In Bodh Raj V. State of Jammu & KashmirAIR 2002 SC 3164, Apex Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fully proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency
d) That the circumstances should, to a moral certanity , actually exclude every hypotheis expect the one proposed to be proved.
23. However, in the present matter, the chain of circumstances is incomplete. Though PW1/Complainant has relied upon order dated 30.09.1999 from SDM, Seelampur Ex. PW1/B, to contend that she had lawful possession of property bearing A-234, Gali No. 15, Gamri Extension, Bhajanpura, Delhi and was dispossessed by the accused Saira but perusal of the said order shows that the same is ex-parte order. Complainant was not subjected to any cross examination. Even otherwise, proceeding under section 145 CrPC are summary in nature and cannot be the basis of conviction. This is especially so when complainant State Vs. Saira Bano and ors. Page 14 of 16 FIR No. : 36/1999 conceded in her cross examination that electricity bill Mark AX does not belong to her as the property mentioned in the bill is not her. She also admitted that receipt no. 6693 annexed with Ex. PW1/C does not bear the property no. This in conjunction with the fact that Santu/PW 5 has categorically deposed that the accused Saira Bano was residing at the house of the complainant as tenant. He further stated that complainant had informed him that the accused was not vacating the premises. Hence, there is no question of trespass since as per PW5, accused was already in possession of the said property. Thus, there cannot be any intention on the part of accused Saira bano to forcefully enter the house of complainant. The fact that there was or not any intention to commit an offence is a matter on which usually it is impossible to adduce positive and tangible evidence and it is a matter which has to be judged in the light of the evidence and surrounding and antecedent circumstances. From the testimonies of PW5, it cannot be held that causing annoyance, intimidation or insult was the aim of the entry of accused Saira since as per PW5 she was residing in the said house as a tenant.
24. 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. 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. The 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. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. However, the circumstances are not of conclusive nature and tendency pointing towards the guilt of accused. Hence, I find that the prosecution failed to prove moving of articles from the dwelling house of complainant as well as the fact that complainant has committed trespass in the State Vs. Saira Bano and ors. Page 15 of 16 FIR No. : 36/1999 house of complainant. 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 be acquitted. All the facts are not consistent with the hypothesis of the guilt of the accused. It cannot be inferred that the dominant intention which prompted the entry of accused was causing of intimidation, insult or annoyance to the complainant. It is the cardinal principle of criminal law that the accused persons are presumed to be innocent until proved guilty. The concomitant of the aforesaid discussion is that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt as intent to commit an offence
25. In view of the aforesaid discussion and findings, accused Saira Bano is acquitted for the offence punishable under section 380 IPC as well as 457 IPC. Accused Anish Ahmed is acquitted under Section 380 IPC. Their bail bonds stand cancelled and surety stands discharged. File be consigned to the Digitally signed Record Room as per rules RUPINDER by RUPINDER SINGH SINGH DHIMAN Date: 2023.05.25 DHIMAN 15:43:13 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 25.05.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains 16 (sixteen) pages and each page bears my signature.
RUPINDER Digitally signed by
RUPINDER SINGH
SINGH DHIMAN
Date: 2023.05.25
DHIMAN 15:43:19 +0530
(RUPINDER SINGH DHIMAN)
Metropolitan Magistrate-01
NE/KKD Courts, Delhi
25.05.2023
State Vs. Saira Bano and ors. Page 16 of 16 FIR No. : 36/1999