Delhi District Court
State vs . Sandeep & Others. on 30 September, 2022
IN THE COURT OF MS. SWATI GUPTAII METROPOLITAN
MAGISTRATE05, DISTRICT NORTH, ROHINI COURTS,
DELHI
State Vs. Sandeep & Others.
FIR No. 392/2011
PS. Bawana
U/s. 447/34 IPC
JUDGMENT
1) Case ID : 5286264/2016
2) The date of commission of offence : : 17.11.2011
3) The name of the complainant : BDO Kanjhawala
4) The name & parentage of accused : Sandeep Thakran
S/o Late Sh. Ram
Kumar R/o House
no. 612, Village
Bajitpur Thakran
Delhi and Harbir
Singh S/o Sh. Ajit
Singh R/o House
no. 596, Village
Bajitpur Thakran,
Delhi
5) Offence involved : Section 447/34
IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) Judgment reserved pronounced on : 30.09.2022
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly, the case of the prosecution is that the accused persons have encroached upon the Gram Sabha Land in Village Bajitpur Thakran by raising illegal constructions, as such, they have committed criminal trespass punishable under section 447 of the Indian Penal Code, 1860 (IPC).
2. Both the accused persons were summoned and notice of the offence punishable U/s 447 IPC was framed against them, to which accused pleaded not guilty and claimed trial.
3. To bring home guilt of the accused persons, the prosecution examined six witnesses namely PW1 Sh. Ashwani Kumar, Patwari, PW2 Sh. Mukul Manrai, Block Development Officer, PW3 Sh. Babu Lal, PW4 Ct. Kapil, PW5 WSI Bhagwan Devi and PW6 SI Narender. Thereafter PE was closed.
4. Statement of accused persons under section 313 Cr.P.C. was recorded wherein they stated that they were falsely implicated in the present case. They further stated that the land in question was allocated to the father of accused Sandeep.
5. In their defence, the accused persons have examined three of State Vs. Sandeep & Ors FIR no.392/2011 9 of 9 their neighbours namely DW1 Sh. Balbir Singh, DW2 Sh. Ajit and DW3 Sh. Bijender Singh. Thereafter DE was closed.
6. Final arguments were advanced by the Ld. APP for the State and Ld. Counsel for the accused persons.
7. Rival submissions have been considered and record of the case has been carefully perused.
8. PW1 Sh. Ashwani Kumar, Patwari has deposed that on 29.08.2012 he was posted as Patwari at village Bajitpur Thakran and he has brought relevant extract of Khasra Girdawari being Ex. PW1/A and Khatoni being Ex. PW1/B of Khasra no.21/9, Village Bajitpur Thakran. He further deposed that as per the record, the above said Khasra number belongs to the Gram Sabha. He also proved his report given to IO during investigation and the same is Ex. PW1/C. During his cross examination, PW1 stated that he inspected the land in question on 29.08.2012 and did not find any construction. He also stated that without measuring the inches/fita it is impossible to tell that which area of village belongs to Gram Sabha and which belongs to Lal Dora. He further stated that he did not measure the land in question using scale or fita.
9. PW2 Sh. Mukul Manrai, Block Development Officer has deposed that he was posted as BDO, NorthWest Delhi in 2011 and he State Vs. Sandeep & Ors FIR no.392/2011 9 of 9 received information from SDM Narela regarding illegal construction on a Gram Sabha Land along with photographs of site which are Ex. P1 to Ex. P4. He further deposed that on 03.05.2011, he had made the complaint being Ex. PW2/A to the SHO Bawana regarding fresh encroachment on Gram Sabha Land in village Bajitpur which was earlier demolished. PW2 also deposed that he had furnished the letter being Ex. PW2/B and copy of order dated 03.01.2009 of Revenue Assistant & SDM Narela being Mark PW2/C to the IO. During his cross examination PW2 stated that he does not remember if he visited the property in question or not and admitted that the complaint Ex. PW2/A does not mention any Khasra number and no Khasra number of site is mentioned in the photographs Ex. P1 to Ex. P4
10. PW3 Sh. Babu Lal deposed that he was a tenant of the accused Sandeep and correctly identified both the accused persons. He stated that there was vacant land in front of houses of both the accused persons but stated that he does not know anything else. Since PW3 did not support the case of the prosecution, he was cross examined by the state after seeking permission from the court.
11. During his cross examination by the APP, PW3 stated that the vacant land in front of houses of both the accused persons was Gram Sabha Land and he identified the land in front of the houses of the accused persons from photographs Ex. PW5 and Ex. PW6. PW3 denied that the accused Sandeep was using the vacant Gram Sabha State Vs. Sandeep & Ors FIR no.392/2011 9 of 9 Land in front of his house illegally by raising a boundary wall and cultivating vegetables. PW3 denied that the accused Harbir was using the vacant Gram Sabha Land in front of his house illegally by raising a wooden fencing and storing dung cakes. During his cross examination by the Defence counsel, PW3 stated that he cannot tell which land falls within Lal Dora limits and which land belongs to Gram Sabha.
12. PW5 WSI Bhagwan Devi is the scribe of FIR no. 392/11 in the present case who has proved the copy of the same which is Ex. PW5/A.
13. PW6 SI Narender is the Investigating Officer of the case, who has deposed that upon receipt of complaint Ex. PW2/A, he investigated the matter. On 29.08.2012, he got the site plan Ex. PW6/B prepared at the instance of an official from BDO Office. He collected the report from the Patwari, Ex. PW1/C and recorded statements of the Patwari and BDO. He took photographs of the spot Ex. PW5 and Ex. PW6. He prepared the arrest memo of accused Sandeep Ex. PW4/A and of accused Harbir Ex. PW6/C and he prepared the chargesheet. During his cross examination, PW6 admitted that the site plan Ex. PW6/B does not bear sign of the Patwari or any BDO official but denied that it was not prepared in their presence.
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14. PW4 Ct. Kapil stated that he joined the investigation with the IO on 05.10.2012 and accused Sandeep was arrested in his presence.
15. All defence witnesses i.e. DW1, DW2 and DW3 have deposed that the disputed land belongs to the accused persons and was allotted to them under the 20 point programme of the Government of India in 1983. DW2 added that the disputed land comes in the ambit of Lal Dora of the village via Khasra No. 204. DW2 produced copy of revenue record Ex. DW2/A(OSR) and allotment letter Ex. DW2/B(OSR) and copy of electricity and water bills Mark A and B (OSR). In their cross examination, all three defence witnesses stated that they cannot demarcate which part of the land of village comes within the ambit of Lal Dora or not.
16. Before appreciation of evidence, it is imperative to capture the law applicable to the facts of the present case.
17. Section 447 IPC penalises commission of criminal trespass and section 441 IPC defines criminal trespass.
18. The essential ingredients of the offence under section 447 IPC read with section 441 IPC are as follows:
i. The complainant was in the possession of the property; ii. The accused entered into or upon such property unlawfully or having entered into or upon such property lawfully remains there with intent to:
a) Commit an offence;
State Vs. Sandeep & Ors FIR no.392/2011 9 of 9
b) Intimidate;
c) Insult;
d) Annoy any person in possession of the property.
19. In the decision cited as Rajinder Vs. State of Haryana, (1995) 5 SCC 187 it has been held by the Hon'ble Supreme Court of India that the unauthorised entry into or upon the property in the possession of another or unlawfully remaining thereafter lawful entry can answer the definition of criminal trespass if, and only if, such unlawful 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. Therefore, unless any of the ingredients referred in section 441 IPC is proved, no offence of criminal trespass can be said to have been committed. Such an intention has to be gathered from the facts and circumstances of a given case.
20. In the present case, thus, in order to establish culpability of the accused persons, the prosecution ought to prove:
i. the identity of the subject premises which have been trespassed; ii. that the said premises belong to possession of Gram Sabha; iii. that the accused persons entered the said premises unlawfully or having entered lawfully they remained there with intent to commit an offence.
21. On the basis of the prosecution evidence, this court finds as follows:
i. The chargesheet, the FIR Ex. PW5/A and the complaint Ex. PW2/A which formed the genesis of the FIR merely mention about State Vs. Sandeep & Ors FIR no.392/2011 9 of 9 encroachment of Gram Sabha Land at Village Bajitpur, Delhi. None of the three documents identify the allegedly encroached premises.
ii. PW2 BDO proved the complaint Ex.PW2/A, however, the said complaint does not mention the Khasra Number on which illegal encroachment had taken place. PW2 further proved photographs of the encroached land but failed to identify which Khasra No. was depicted by the photographs. It is not proved if PW2 personally visited the premises. The SDM at whose behest the complaint was made and photographs Ex. P1 to P4 were furnished has not been examined as a witness.
iii. PW1 Patwari proved the extracts of Khasra Girdawari Ex. PW1/A and Khatoni Ex. PW1/B, Village Bajitpur, as per which, Khasra no. 21/9 is a Gram Sabha Land but he could not prove that it was the said Khasra no. 21/9 which was encroached.
iv PW3 tenant of the accused Sandeep turned hostile and even otherwise, he is not a competent witness to depose whether the premises are Gram Sabha Land or Lal Dora.
v. PW6 IO proved site plan Ex. PW6/B but the same does not bear endorsement of any officer of BDO Office or Patwari, as such, the same is not reliable.
22. In view of the above, this court is of the considered opinion that the prosecution has not been able to prove the factum of encroachment. But more remarkably, the prosecution has even failed to prove which portion of land of Village Bajitpur is Gram Sabha Land and out of it which is/are the premises which were allegedly encroached. It is trite that the case of prosecution has to stand on its own legs and the prosecution has to discharge its initial burden of State Vs. Sandeep & Ors FIR no.392/2011 9 of 9 proving guilt of the accused beyond reasonable doubt. The prosecution has failed to do so. Benefit of doubt must be given to the accused persons.
23. Since the prosecution has failed to prove its case, thus, the onus of proof did not shift to the defence and this court finds no reason to discuss the defence evidence.
24. In view of the above discussion, both the accused persons are exonerated of offence punishable under section 447 IPC, hence, acquitted.
22. File be consigned to record room after due compliance. .
Pronounced in the open (SWATI GUPTAII)
Court on 30.09.2022 MM05 (North), Rohini Courts
New Delhi
This judgment contains 9 signed pages.
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