Delhi District Court
State vs . Bahadur Singh Fir No. 12/2004 on 31 March, 2022
State vs. Bahadur Singh FIR No. 12/2004
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-05, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
State vs. Bahadur Singh
FIR No. 12/2004
U/sec. 448/380/34 IPC
PS: Krishna Nagar
Date of institution of the case: 26.08.2004
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 31.03.2022
Unique I. D. No. 5322/2016
JUDGMENT
a) Date of commission of the offence : 17.01.2004
b) Name of the complainant : Shri Prakash Chand
c) Name of the accused and his parentage : Bahadur Singh, S/o Late Khem Singh, R/o A-1,Vishvkarma Park, Near Shakarpur police station, Delhi.
d) Offence complained of : Sec. 448/380/34 IPC
e) Offence charged of : Sec. 448/380/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
Page No. 1 of 17.
State vs. Bahadur Singh FIR No. 12/2004
h) Date of such order : 31.03.2022
i) Brief reasons for the just decision of the case:
Succinctly stated facts of the prosecution case are that on 17 January 2004 the complainant Shri Prakash Chand lodged a complaint against three persons namely Bahadur Singh, Pradeep Kumar and Surender @ Pappi regarding house trespass and theft of his belongings. Consequently, on the basis of his complaint Ex.PW4/A, present FIR was registered at police station Krishna Nagar against the above named persons and investigation was undertaken.
During investigation, one day police remand of accused Bahadur Singh was obtained but nothing was recovered at his instance.
After completion of investigation, charge-sheet under sections 448/380/34 IPC was filed before the court against accused Bahadur Singh, Pardeep Kumar and Omkar Singh. Consequently, vide order dated 26.08.2004, accused persons were summoned to face the trial.
On 21.12.2004, accused persons entered their appearance and copy of the charge- sheet was supplied to them.
Vide order dated 22.11.2007, accused persons namely Pradeep Kumar and Omkar Singh were discharged for want of sufficient evidence against them while charge under section 448/380 IPC was framed against accused Bahadur Singh to which he pleaded not guilty and claimed trial.
Page No. 2 of 17.
State vs. Bahadur Singh FIR No. 12/2004 To connect the accused with the crime, prosecution has examined as many as five witnesses.
PW/ASI Rajender was the Duty Officer. He proved the FIR as Ex/PW1/A. PW2/Constable Rajesh testified that on instruction of the IO, he collected the copy of GPA executed by the erstwhile owner Smt. Rashmi Rani in favour of the complainant. Same is Mark X. PW3/SI Bhagwat Singh was the 1st IO of the case. He testified that on 17.01.2004, on receipt of DD Entry No. 15-A, he went to the spot but the house was found locked. On enquiry, he came to know that the call was made by Sh. Prakash Chand but Sh. Prakash Chand was not found there. Therefore, he came back to police station. He further stated that at about 03:00 p.m., Sh. Prakash Chand came to police station and when HC Ranjan started recording his statement, he left the police station saying that he will come back with his uncle.
He further stated that the complainant again came back at 05:50 p.m., and he recorded his fresh statement, on the basis whereof, present FIR was registered. He stated that he went to the spot and prepared the site plan Ex.PW3/A. Thereafter, the investigation was transferred to DIU.
During cross-examination, he stated that he did go inside the house as it was locked.
Page No. 3 of 17.
State vs. Bahadur Singh FIR No. 12/2004 PW4/Prakash Chand was the complainant. His testimony is discussed in succeeding paras of the judgment.
PW5/Retd. ACP Balwant Singh was the IO of the case. He testified that on 29.01.2004, further investigation of the case was marked to him. He recorded the statement of witnesses and arrested accused persons namely Omkar Singh and Bahadur Singh. He stated that he obtained one day PC remand of accused Bahadur Singh and searched his vide Ex;.PW5/A and also seized the photographs of the spot Mark A (colly) and POA produced by accused Bahadur Singh vide Ex.PW5/B. After completion of investigation, he submitted the challan in the court.
PW/Satender and PW/Jitender were the nephew of the complainant. But they did not enter the witness box. Whenever they were summoned by the court, PW/complainant moved application seeking exemptions from their personal appearance. Therefore, the learned predecessor Judge was constrained to issue NBWs against PWs Satender and Jitender. Thereafter, vide order dated 07.03.2020, PW/Satender was dropped from the list of witnesses. On 10.03.2021, PW/Jitender was produced before the court on execution of NBWs. However, he was admitted to bail and was directed to appear on the date fixed for evidence. However, on next date of hearing i.e. 01.04.2021, he did not appear before the court. One more opportunity was granted to the complainant to produce PW Jitender but he did not appear.
Bank manager Sh. S. L. Puttu was also cited as a witness but he was also dropped from the list of witness.
Page No. 4 of 17.
State vs. Bahadur Singh FIR No. 12/2004 PW/Sanjay, the photographer, was also dropped from the list of witnesses vide order dated 22.11.2019, in view of the report submitted by the office of worthy DCP.
Thereafter, PE was closed by the order of the court and recording of the statement of the accused was also dispensed with.
Issues
1. Whether accused has committed house trespass?
2. Whether accused has committed theft in the dwelling house of the complainant?
Decision and brief reasons for the same The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamental to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.
Issue No.1 Whether accused has committed house trespass?
Page No. 5 of 17.
State vs. Bahadur Singh FIR No. 12/2004 It was argued on behalf of the accused that the offence of " criminal trespass" as defined in section 441 IPC can only be committed against a person who is in actual physical possession of the premises. He submitted that it pre-supposes positive and de-facto possession of the complainant but, in the case in hand, the accused is the rightful owner of the house and merely because the complainant had filed some frivolous civil suit, it cannot be said that he was in the possession of that house. He submitted that onus was on the prosecution to prove each and every ingredient of section 441 IPC, however, prosecution has failed in his duty.
On the other hand, it is submitted by the learned APP for the State that prosecution has proved that complainant was in possession of the house at the time of incident and accused Bahadur by replacing the lock of the complainant has committed the offence punishable under section 448 IPC.
Section 441 IPC defines "criminal trespass". It reads 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".
Section 442 IPC deals with "house trespass". It reads as under:-
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".
Page No. 6 of 17.
State vs. Bahadur Singh FIR No. 12/2004 Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
Section 448 provides punishment for "house trespass". In order to sustain the conviction under section 448 IPC it must be proved that the complainant was in possession of the property in question and the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and there must be proof of one or other of the intentions mentioned in section 441 IPC.
Section 448 IPC reads as under:-
448. Punishment for house-trespass--Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Now let us see if the prosecution has discharged its evidentiary burden to prove all the elements of the offence beyond reasonable doubt.
In order to bring home the guilt of the accused, the prosecution has cited as many as twelve (12) witnesses in the list of witnesses annexed with the charge-sheet. Out of these twelve witnesses, PW Prakash Chand was the complainant, PW/Jitender and PW/Satender were his relatives, PW/Sanjay was the photographer while rest witnesses are formal in nature.
However, PW/Jitender, PW/Satender and PW/Sanjay were not examined despite availing numerous opportunities.
Page No. 7 of 17.
State vs. Bahadur Singh FIR No. 12/2004 It was argued on behalf of the accused that PW Jitender, PW/Satender and PW/Sanjay were intentionally withheld by the complainant. According to learned defence counsel, if these witnesses were examined in court, they might have spoken the truth which was not suitable or favourable to the complainant.
It is the case of the complainant that his nephew Jitender and Satender used to reside with him at the house in question.
PW/Jitender and PW/Satender could and should have been examined but they chose not to enter the witness box despite issuance of non-bailable warrants them. Thus, there was evidence which the State could have adduced so that the complainant was not left in the invidious position of being assessed as a single witness but they were not examined despite availing numerous opportunities.
I am of the considered opinion that these two witnesses could not only have testified regarding the possession of the complainant but could also have dealt with the accused's assertion that no such incident as alleged by the State had happened.
Thus, in view of the above discussion, not only does an adverse inference arise against the prosecution from their non-production as witnesses in view of illustration (g) to section 114 of the Indian Evidence Act, but the circumstance of their being withheld from the court casts a serious reflection on the truthfulness of the prosecution version.
Now, I will decide if the testimony proffered by the complainant was credible and reliable?
Page No. 8 of 17.
State vs. Bahadur Singh FIR No. 12/2004 PW4/complainant Sh. Prakash Chand testified that in the year 1998, he along with nephew namely Jitender and Satyender Kumar was residing in rented premises i.e. the disputed property. Landlady of the said house was Smt. Rashmi Rani. He stated that in the year 2000, he filed a civil suit and on 28.02.2000, stay order was passed in his favour by the Civil Court. He further stated that on 22.10.2001, advocate of the landlady informed him about sale of house to accused Bahadur Singh. Therefore, he withdrew his Civil Suit.
He further stated that on 14.04.2002, accused along with Pradeep Kumar and Ramesh @ Titu came at his rented house and asked him to vacate the house. Therefore, in the month of April, 2002, he again filed a Civil Suit against Bahadur Singh and also tried to pay the rent to accused but he refused to accept the same.
He further stated that on 14.01.2004 at about 07:30 p.m., accused along with Omkar and Pradeep came to his house and threatened him to vacate the house.
Therefore, on 15.01.2004, he gave a complaint to police in this regard. He stated that on 16.01.2004, he went to his native village after locking the premises and next date when he returned from his native village, he was shocked to see that accused had put his lock on his house and had also removed his household articles. Hence, the present FIR.
During cross-examination, he admitted the suggestion that prior to 04.06.2004; he did not inform the learned Civil Judge about his dispossession. He stated that he did not hand over the keys of the lock to police as accused had taken the lock with him. He also admitted the suggestion that the theft was not committed in his Page No. 9 of 17.
State vs. Bahadur Singh FIR No. 12/2004 presence. He voluntarily stated that theft was committed in the night when he was at his native village. He also admitted the suggestion that the Civil Suit has been decided against him. He stated that appeal is pending before the Hon'ble High Court of Delhi. He also admitted the suggestion that there was no written rent agreement with the accused or erstwhile owner. He stated that erstwhile landlady had admitted his possession.
The complainant has not produced any rent agreement, rent receipts or any other oral or documentary evidence to establish that he was in possession of the property in question on the alleged date of incident. He admitted that no written agreement was executed between him and the erstwhile owner. He also admitted that he withdrew the suit after the premises was sold to the accused by erstwhile owner. Thus, except the oral evidence of PW4/complainant there is no evidence on record to show that he was in possession of the house on the alleged date of incident.
Even if it is presumed for the sake of argument that complainant was in the possession of the house on the alleged date, there is no direct evidence in the form of eye witness as to house trespassing by the accused Bahadur Singh.
PW4/complainant testified that when he returned from his house, he "found" that accused and two more persons have put their lock on the house but how he "found" was not clarified during trial.
Under the circumstances, the prosecution case remained in the realm of suspicion. However, it is settled law that suspicion, howsoever, strong, cannot take the place of proof.
Page No. 10 of 17.
State vs. Bahadur Singh FIR No. 12/2004 The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. 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 something that `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' 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 mere 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. (Vide:
Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
Page No. 11 of 17.
State vs. Bahadur Singh FIR No. 12/2004
Issue No.2
Now let us examine if the prosecution has succeeded in proving that accused has committed theft in the dwelling house.
For deciding this issue, it would be advantageous to refer section 378 and 380 IPC.
Section 378 IPC defines "theft". It reads as under:-
378. Theft.--Whoever, intending to take dishonestly any moveable 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.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person Page No. 12 of 17.
State vs. Bahadur Singh FIR No. 12/2004 in possession, or by any person having for that purpose authority either express or implied.
Section 380 IPC provides punishment for theft in dwelling house etc. It reads as under:-
380. 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.
It was argued on behalf of the accused that there is no direct evidence to prove that accused Bahadur Singh has committed theft in the dwelling house.
Per contra, it was argued on behalf of the State that " theft" can be proved by direct or circumstantial evidence. He submitted that law does not always require direct evidence from an eyewitness; otherwise, no conviction will be possible in crimes where there are no eyewitnesses.
The entire prosecution case hinges on the testimony of PW4/complainant.
He testified that on 16.01.2002, he went to his native village after locking the house. On 17.01.2004, when he returned from his village, he "found another lock on the main door and the house was empty". Again when he entered the witness box to conclude his testimony, he stated that on 17.01.2022, when he came at his house, he found Pradeep Nasa, Omkar Singh @ Pappi and Bahadur Singh had taken his household articles from his house. He further stated that these persons Page No. 13 of 17.
State vs. Bahadur Singh FIR No. 12/2004 have also taken windows and door of the house and that they had put their lock on the main gate.
However, he during cross-examination by the learned defence counsel stated that he did not witness the crime. He stated that theft was committed in night in his absence.
Further, the alleged stolen articles were not recovered by police during investigation. PW5, who was the IO of the case, testified that one day PC remand of the accused was obtained and his house was searched vide Ex.PW5/A but nothing could be recovered.
Thus, there was no direct evidence to establish that accused Bahadur Singh had committed theft as alleged by the complainant. Hence, the prosecution has engaged itself into circumstantial evidence.
First circumstance pointed out by the State was that accused had threatened the complainant one day before the incident and the matter was reported to police. However, it could not prove this fact.
Next, it was contended on behalf of the State that since accused had purchased the house in question from the erstwhile owner, thus he was interested in replacing the lock.
According to learned APP for the State, accused had motive to commit the crime.
Page No. 14 of 17.
State vs. Bahadur Singh FIR No. 12/2004 Per contra, it was contended on behalf of the accused Bahadur Singh that complainant had ulterior motive to falsely rope in the accused. He stated that merely on the basis of motive, an accused cannot be convicted. He placed reliance on a judgment passed by a Division Bench of the Hon'ble AP High Court in the case of Marisaa Adinarayana vs The State of A.P. decided on 22 May, 2020 wherein it was held as under
"31. In view of the law declared, motive is not a substantive piece of evidence it is only a corroborative piece of evidence. According to Section 8 of the Indian Evidence Act, motive is relevant fact and it is one of the circumstances to complete the chain of circumstances. Motive is double-edged weapon . It may be a ground for committing a crime and it may also be a ground for falsely implicating the accused. Proof of motive may lend additional support to the prosecution, but it cannot make good the deficiency of the prosecution case....".
Admittedly, civil litigation is/was pending between the parties. Therefore, both the parties had motive to falsely implicate each other.
The Hon'ble Supreme Court of India in the case of Ramesh Baburao Devaskar & Ors vs State of Maharashtra decided on 12 October, 2007 held as under:-
"22. Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is well-known, is a double edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication . Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction............"
Page No. 15 of 17.
State vs. Bahadur Singh FIR No. 12/2004 It is true that in a case of circumstantial evidence, motive is one of the circumstances which assume importance but accused cannot be convicted solely on the basis of motive. Besides motive, prosecution has to adduce cogent and convincing evidence to prove a complete chain of circumstances consistent with the hypothesis of the guilt of the accused.
It is the case of the prosecution that complainant went to his village after putting his lock on the main door of the house and when he came back, he found another lock on the main door and the house was empty.
The State called 1st IO of the case ostensibly to corroborate the version of the complainant that house was empty. However, he testified that when he went to spot, he found the house locked. During cross-examination by the learned defence counsel he stated that he did not enter the house as it was locked. Thus, this witness has not corroborated the complainant that house was empty.
The prosecution has also not led any scientific evidence to link the accused with the crime of theft. No chance print or fingerprint was picked from the lock, latch, doors etc by the police. Even the lock was not seized or produced before the court during trial or investigation.
Conclusion The prosecution has failed to prove beyond reasonable doubt that the accused Bahadur Singh entered the house in possession of the complainant and then committed theft of his belongings.
Page No. 16 of 17.
State vs. Bahadur Singh FIR No. 12/2004
Result
The prosecution has not discharged its evidentiary burden to prove all the elements of the offence beyond a reasonable doubt.
Consequently, accused BAHADUR SINGH stands acquitted of the crime charged.
File be consigned to record room after due compliance.
Announced in open BABITA Digitally signed by BABITA PUNIYA Location: Court No.3, Court on 31st day of March, 2022 Karkardooma Courts, Delhi PUNIYA Date: 2022.03.31 17:02:08 +0530 (Babita Puniya) MM-05, East District, Karkardooma Courts/ Delhi/31.03.2022
This judgment contains 17 pages and each page bears my signature.
(Babita Puniya) MM-05, East District, Karkardooma Courts/ Delhi/31.03.2022 Page No. 17 of 17.