Delhi District Court
State vs Nepal Singh Rana & Suresh on 19 April, 2022
DLSW020002642012
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 99/2010
PS Dabri
U/S : 448/452/427/34 Indian Penal Code, 1860
State V/s Nepal Singh Rana & Suresh
Cr.C No. : 426595/2016
CNR No. : DLSW02-000264-2012
Date of Institution : 24.01.2012
Name of complainant : Renu Jha
Name of accused no.1, parentage & address : Nepal Singh Rana
S/o Ram Chander
R/o B-254, Gali No/54,
Mahaveer Enclave-III,
New Delhi
Name of accused no.2, parentage & address : Suresh Kumar
S/o Ram Lagan
R/o RZC-71,
Mahavir Enclave-II,
School Road, New Delhi
Name of accused no.3, parentage & address : Naveen @ Guddu
(Absconder)
S/o Joginder Pratap Singh
R/o A/30, A Block,
Vijay Enclave, New Delhi
Offence complained off : 448/452/427/34 IPC
FIR No. 99 of 2010; P.S. Dabri Pages 1 of 13 State v. Nepal Singh Rana & Ors.
Plea of accused : Not guilty
Date on which final arguments heard : 29.03.2022
Final order : Accused No.1 Convicted
(Acquitted for 452 IPC)
Accused No.2 Acquitted
Accused No.3 Absconder
Date of Judgment : 19.04.2022
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Argued by: Sh. Manish Kaushik, Ld. APP for the State.
Sh. Rajesh Kaushik, Ld. Counsel for accused.
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JUDGMENT
1. The SHO, Police Station Dabri has presented this charge-sheet against above named accused for initiation of trial under Sections 448/452/427/34 Indian Penal Code, 1860 (for short "IPC").
2. Briefly stated, the facts of the case as per prosecution are that on 22.04.2010 at about 12:30 PM accused with associates entered from the back side of the house, broke cement-made roof tiles and plates. It was further reported that there was a scuffle and complainant Renu Jha was pushed and she even sustained minor injuries. FIR was registered on 24.04.2010 at the police station. Meanwhile the complainant approached the Court and her application under Section 156(3) CrPC was kept for consideration and once chargesheet was filed the complainant case was attached with the police report and tried as one. Upon completion of investigation in the FIR, challan was prepared u/Ss. 448/452/427/34 IPC and filed in Court for trial.
FIR No. 99 of 2010; P.S. Dabri Pages 2 of 13 State v. Nepal Singh Rana & Ors.
3. The copy of chargesheet and documents were supplied to the accused in compliance of Section 207 Cr.P.C. Prima facie case was made out, charge for offence u/Ss. 448/452/427/34 IPC was framed against the accused persons on 16.12.2014 to which they pleaded not guilty and claimed trial. Accused Naveen thereafter chose not to appear before Court and he was declared absconder in law vide Order dated 30.03.2015.
Prosecution Evidence
4. In order to prove its case, prosecution has examined six witnesses (hereinafter referred to as 'PW'). PW-1 Vijay deposed that on 22.04.2010 accused Nepal Singh Rana whose plot was having common wall with the plot in question came alongwith 25-30 persons on his plot from the back side. PW1 deposed that his plot consisted of two rooms, kitchen, toilet and bathroom. PW1 deposed that accused and his associates started breaking the wall and he called the police, which arrived after half an hour and then some of associates of accused left and upon seeing both accused Nepal and Suresh in the Court, he identified both of them. PW1 also deposed that in the scuffle his wife was pushed and she sustained minor injuries which were treated in DDU Hospital. PW1 was cross examined wherein he was successfully confronted with his statement to the police Ex.PW1/DA that there was no mention of 25-30 persons, however only some persons were mentioned. PW1 was also successfully confronted with his police statement that only breaking of ceiling is mentioned and not wall. PW1 was also successfully confronted with his police statement wherein there was no mention that some of the associates of accused leaving when police arrived and also it was not mentioned that police took accused Nepal Singh and his associates to the police station. Even the injuries to the wife of PW1 was also not part of police statement, although PW1 answered that his police FIR No. 99 of 2010; P.S. Dabri Pages 3 of 13 State v. Nepal Singh Rana & Ors.
statement was recorded in police station. PW1 denied that there was any civil suit pending pertaining to the property in question.
5. PW2 Renu Jha is the complainant and she deposed on similar lines as PW1. She identified her police statement as Ex.PW2/A. PW2 deposed that her husband called the police and they arrived within 10-15 minutes. PW2 deposed that she gave her ownership papers qua property in question to the police and same was seized vide seizure memo vide Ex.PW2/D. PW2 identified both accused Nepal Singh and Suresh present in Court during her deposition. PW2 also identified the photographs of the spot and her plot which were exhibited as Ex.P1 (Colly). PW2 was cross examined and confronted with her police statement wherein there was no record that police arrived within 15-20 minutes at the spot; that some of the associates of accused left on seeing the police; that accused Nepal Singh and his associates were taken by the police to the police station. PW2 was confronted with copy of her election ID card, which she admitted and same was exhibited as Ex.PW2/DA. PW2 admitted that a civil suit qua the property in question was pending trial.
6. PW3 Ansar Rehman deposed that he was residing at C-25, Gali No.37, Part-III, Mahavir Enclave i.e. the house in front of the house of the complainant. PW3 deposed that on 22.04.2010 he was teaching in his coaching institute and he came out to see that some persons including ladies and gents along with some labourers were damaging the house of the complainant. Out of the several persons present, PW3 identified accused Nepal Singh present in Court then. PW3 was cross examined and he was confronted with his police station wherein it was not mentioned that he was teaching in his coaching institute and on hearing commotion he came out. PW3 answered that he saw accused Nepal Singh first on the date of FIR No. 99 of 2010; P.S. Dabri Pages 4 of 13 State v. Nepal Singh Rana & Ors.
incident and his statement was recorded by the police on the evening of the said date but the same was not signed by him as it was an oral account and nothing was written.
7. PW4 Surender Giri is stated to have been running a garment's shop at C-
25, Gali No. 37 and he deposed that he is residing next of Renu Jha. He deposed to have seen Renu Jha residing in the house adjacent to his house and there was dispute between the complainant and accused as to ownership. PW4 denied being present at the spot on the date of incident. PW4 admitted he could identify accused Nepal Singh but not accused Suresh. Ld. APP for the State sought permission of the Court to cross examine the witness, which was allowed and PW4 denied all the suggestion as put about the incident and about the identity of accused Suresh.
8. PW5 SI Neeraj Kumar deposed that he was second IO in the case and during his investigation, charges under Section 452 and 427 were added and all three accused namely Nepal Singh, Suresh and Naveen were formally arrested vide memo Ex.PW5/A, Ex.PW5/B and Ex.PW5/C, respectively. PW5 also deposed to have filed the police report in the Court and identified accused Suresh. PW5 was cross examined as nil by the defence.
9. Accused admitted the genuineness of FIR No. 99/2010 under Section 294 CrPC without admitting the contents therein and the same is identified as was Ex.A1.
10. PW6 Akhilesh Vajpai was the first Investigating Officer and he deposed that on 22.04.2010 he recorded statement of complainant already FIR No. 99 of 2010; P.S. Dabri Pages 5 of 13 State v. Nepal Singh Rana & Ors.
Ex.PW2/A and he made endorsement Ex.PW6/A. Based on said endorsement, present FIR was registered and he visited the spot and prepared site map Ex.PW6/B and at the instance of complainant arrested accused Nepal Singh Rana and Suresh vide arrest memo Ex.PW6/C and Ex.PW6/D, respectively. The search memo of both accused is Ex.PW6/E and Ex.PW6/F. PW6 further deposed that on 27.04.2010 accused Naveen was also arrested vide memo Ex.PW6/G and his search memo is Ex.PW6/H. PW6 during investigation seized photocopy of GPA relating to property in favour of complainant and same was seized vide memo Ex.PW2/B. PW6 deposed to have recorded statement of witness Rehman and Surender Giri. PW6 was cross examined wherein he answered that he recorded the complaint at 9:00 PM and handed over the same for registration of FIR at about 10:15 PM. PW6 deposed to have reached the spot within 30-45 minutes and stated to have recorded the statement of complainant after 2-3 days of incident. PW6 pleaded ignorance if any property dispute existed between accused Nepal and complainant Renu and further pleaded ignorance if accused Nepal Singh had lodged any FIR for cheating and forgery against the complainant.
Statement of Accused
11. Prosecution evidence was closed on the 10.08.2017. The statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 22.11.2018 to which accused Nepal Singh Rana replied that he is having adjacent plot to complainant which he purchased from one Abhay Mishra and Mamman Giri in 2008 and complainant and her family was residing illegally in the said property. Accused Nepal also defended that civil suit is also pending for the suit property and just to create pressure the present false case was filed against him. Accused Suresh on the other hand replied that he has been wrongly implicated in the present case and he FIR No. 99 of 2010; P.S. Dabri Pages 6 of 13 State v. Nepal Singh Rana & Ors.
never went to suit property on 22.04.2010 and he was not involved in any incident relating to property in question.
Defence Evidence
12. Defence chose to lead evidence and accused Nepal Singh Rana stepped in witness box as DW1 and deposed in his examination in chief that he had purchased the property in question in 2008 and complainant was illegally possessing the same. DW1 further deposed that complainant had also lodged a false FIR no. 123/2010 under Section 323/324/34 IPC against the accused wherein he was acquitted and judgment of the same is Ex.DW1/A. DW1 deposed that Civil Suit qua the property in question was pending and he had also lodged an FIR no. 154/2011 u/Ss.406/420/468/471 IPC against the complainant in P.S. Dabri. DW1 was cross examined wherein he answered that total area of the plot no. C-26 is 68 sq. Yards and pleaded ignorance as to its old number. DW1 admitted to have purchased half portion i.e. 34 sq. Yards of the plot no. C-26 from one Abhay Mishra. DW1 Nepal denied the suggestion that whole plot C-26 was in the name of complainant Renu and volunteered that whole plot was in name of Baleshwar Jha (father in-law of complainant Renu). DW1 admitted that half of the portion of the property was in possession of Renu and he was claiming possession of only other half of the portion. DW1 further answered that on 22.04.2010 he had went to take possession of the disputed plot from the complainant and denied that he alongwith his associates had entered forcibly into the plot and broken the cement roof, cement slates. DW1 also answered that he had filed Civil Suit in June-July 2010.
Arguments
13. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by FIR No. 99 of 2010; P.S. Dabri Pages 7 of 13 State v. Nepal Singh Rana & Ors.
examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
14. On the other hand, learned counsel for the accused argued that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the case of the prosecution is full of contradictions. He further argued that original title document was never placed on record by the complainant and there was unexplained delay of two days in registration of FIR.
Findings
15. At the onset, it is pertinent to note that there is no proof of any injury sustained by the complainant. Although it is deposed that she received treatment at DDU hospital, yet there is no MLC placed on record. Further, there is neither any evidence that complainant was hurt, assaulted or wrongfully restrained nor there is evidence that there was fear of any of the above action. In the absence of the above, the allegations of Section 452 falls flat on the ground. For Section 452 IPC, the prosecution was to prove that accused committed house-trespass and accused also having made preparation to cause hurt, assault or wrongfully restraint or mere fear of any of the above. In the present case, the latter part of the ingredients of Section 452 is not made out.
16. The other allegation are of house trespass and mischief. Firstly, the title to the property is under serious contention. Complainant claims her right to entire 68 sq. Yards of the property no. C-26 through her father in-law. The accused Nepal Singh Rana alleges to be the owner of half share i.e. 34 sq. Yards having bought the same from one Abhay Mishra. Further there in no dispute as to possession of complainant Renu and his family over the entire FIR No. 99 of 2010; P.S. Dabri Pages 8 of 13 State v. Nepal Singh Rana & Ors.
share of 68 sq. Yards of the property. PW1, PW2, PW3 and DW1 have unequivocally deposed about the settled possession of complainant over the entire property no. C-26. Also the presence of accused Nepal Singh Rana is not disputed at the place of incident on 22.04.2010. DW1 himself admits that he had gone to the property to ask complainant to vacate and also to collect rent from his tenant in C-27. There are photographs Ex.P1 to attest to the damage caused to property of the complainant and same is in excess of rupee fifty.
17. The only point of contention is whether accused Nepal Singh Rana and his associates trespassed and caused mischief or complainant herself caused damages to her property and tried to implicate the accused persons. Now from the deposition on record and version of the accused itself, the complainant was already in possession of the entire property and despite several requests she was not vacating the half share of property in question allegedly owned by the accused Nepal Singh Rana. In such a scenario, to plead that complainant herself just to implicate accused Nepal Singh in false case would cause damage to her property does not seem natural. Complainant if already in possession and not adhering to repeated requests of accused Nepal Singh, would continue to enjoy her possession. Further, even if for sake of arguments PW1 and PW2 both can be stated to be interested witnesses, yet PW3 stepped in witness box and deposed that on 22.04.2010, accused Nepal Singh Rana alongwith his other associates came and damaged the house of complainant. Although the defence tried to dispute the presence of PW3 at the spot, however his testimony was unshaken and even PW6 i.e. the IO has deposed to have recorded statement of PW3 to be witness to the incident. True that PW4 turned hostile to the case of complainant but considering the events and relation between the parties, such hostility can be attributed to fear, coercion, non-interest in the FIR No. 99 of 2010; P.S. Dabri Pages 9 of 13 State v. Nepal Singh Rana & Ors.
ends of justice on part of the said witness or even being won over by the accused side.
18. The prosecution was bound to prove the ingredients of Section 441 and 442 of IPC i.e. criminal trespass that too in a dwelling house or any building used as place for worship, or as a place for the custody of property. Criminal trespass is said to have been constituted when any person enter into or upon property in 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. In the present case, the PW1, PW2 and PW3 have categorically identified accused Nepal Singh Rana to be the aggressor and having damaged the roof and cement slates of the complainant's house. PW3 is an independent witness and his testimony was unshaken. The defence pointed out the difference in time deposed by PW1 and PW2 about the arrival of police, however such minor inconsistencies cannot rob the testimonies of the its pivot nature. Moreover, such minor inconsistencies of gap of 15-20 minutes is natural and rule out any verbatim testimonies. The accused also tried to highlight that PW1 and PW2 initially before police deposed that there were few associates of accused and later before Court deposed that there were 25-30 people. The said contradiction is again natural and can be human exaggeration. At a time of attack at their house, the complainant and his family cannot be supposed to note every details of the incident.
19. PW1, PW2 and PW3 have all identified accused Nepal Singh Rana to be actively involved in damage to the property of the complainant. PW3 has however not identified accused Suresh and neither PW1 nor PW2 have FIR No. 99 of 2010; P.S. Dabri Pages 10 of 13 State v. Nepal Singh Rana & Ors.
deposed any act having been committed by accused Suresh. Even if it is assumed that accused Suresh was present at the spot and was identified by PW1 and PW2, yet no role was attributed towards him, nor did the prosecution was able to prove that accused Suresh shared any common intention with the accused Nepal Singh Rana. To inculcate accused Suresh under Section 34, the prosecution was duty bound to prove that accused Nepal Singh Rana, Suresh and any other associates formed a common intention and act was committed in furtherance of the said intention.
20. As regards the allegations of causing mischief, the prosecution is able to establish that accused Nepal Singh Rana was present at the spot and as per testimonies of PW1, PW2 and PW3 accused Nepal caused damage to the house roof and cement slates. The defence wanted to point out contradiction in the testimonies of PW1 and PW2 wherein their police statement contained damages to house roof and before the Court, they deposed that house wall was damaged. The said version cannot be substantial contradiction, considering the strata of the society the complainant belongs and their limited exposure to police and Court proceedings. Further, the photographs of the damage on record i.e. Ex.P1 corroborates the mischief caused to the house of the complainant. There can be seen extensive damage to the house roof made of cement slates and also to household articles on which the roof fell. As per the above finding, ingredients of Section 425 IPC are made out, as prosecution has been able to prove intent of accused Nepal Singh Rana to cause wrongful loss or damage to property of complainant, thereby he caused destruction thereof as to destroy and diminish its value. The photographs further substantiates the extent of damage and same can safely be assumed to be more than fifty rupees. The prosecution, however has neither been able to prove any FIR No. 99 of 2010; P.S. Dabri Pages 11 of 13 State v. Nepal Singh Rana & Ors.
damage caused by accused Suresh nor has it proved that accused Suresh shared a common intention to cause mischief to the property in question.
Conclusions
21. Thus from the discussion above, the defence has raised reasonable doubt in the case of the prosecution. The prosecution has failed to prove that accused Nepal Singh Rana or Suresh committed house trespass after making preparation for hurt, assault or wrongful restraint. The prosecution also failed to prove that accused Suresh himself committed house trespass or mischief or he shared any common intention in furtherance of which house trespass or mischief was committed. The prosecution has however, established beyond reasonable doubt that accused Nepal Singh Rana has committed criminal trespass and such trespass was by entering into building in the possession of the complainant used as dwelling house. The prosecution has also been able to prove that accused Nepal Singh Rana with intention to cause wrongful loss to complainant, caused destruction of house roof, cement slates in a situation thereof as to destroy its value and utility thereby causing mischief and since the property damaged as seen from photograph Ex.P1 was substantial, accused Nepal Singh Rana has committed mischief causing damage to the amount of fifty rupees and above.
ORDER
22. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused Suresh, who is entitled to be exonerated of all the charge against him in the present case. Accordingly, accused Suresh is hereby acquitted of the FIR No. 99 of 2010; P.S. Dabri Pages 12 of 13 State v. Nepal Singh Rana & Ors.
offence punishable under Section 448/452/427/34 IPC. Further, accused Nepal Singh Rana is acquitted of offence punishable under Section 452 IPC, however accused Nepal Singh Rana is convicted of offence punishable under Section 448/427 IPC.
Announced in Open Court (Paras Dalal)
on this April 19, 2022 MM -01, South West
Dwarka Court, New Delhi
FIR No. 99 of 2010; P.S. Dabri Pages 13 of 13 State v. Nepal Singh Rana & Ors.