Delhi District Court
Asif Mohd vs The State on 28 August, 2024
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE - 05: SOUTH EAST DISTRICT,
SAKET COURT, NEW DELHI
CNR No. DLSE01-001825-2018
CRL. APPEAL No. 104/2018
U/S. 374 Cr. P. C.
PS: JAMIA NAGAR
IN THE MATTER OF:
ASIF MOHD
S/o. ASHFAQ AHMAD
R/o. H. NO. 360, MAIN ROAD,
ZAKIR NAGAR, JAMIA NAGAR,
NEW DELHI.
APPELLANT.........
VERSUS
STATE
RESPONDENT......
OTHER DETAILS :
DATE OF INSTITUTION : 05.03.2018
DATE OF RESERVING ORDER : 20.07.2024
DATE OF ORDER : 28.08.2024
APPEAL U/S. 374 CR. P. C. AGAINST IMPUGNED
JUDGMENT DATED 20.01.2018 AND ORDER OF
SENTENCE DATED 05.02.2018 OF LD. MM-08, SOUTH-
EAST DISTRICT, SAKET COURTS, IN CASE FIR NO.
07/2008, PS JAMIA NAGAR, U/S. 427/447/434 IPC & SEC. 3
OF The PREVENTION OF DAMAGE TO PUBLIC
PROPERTY ACT, 1984.
JUDGMENT
1. The appellant is aggrieved by the impugned judgment dated 20/01/2018 of Ld. MM-08, South-East District, Saket Court, vide which he was convicted for offence U/s. 427/447/434 IPC & Section 3 of The Prevention of Damage to Public Property CA No. 104/2018 Asif Mohd. Vs. State Page No.1/11 Act, 1984, and by order on sentence dated 05/02/2018 vide which he was sentenced to Simple Imprisonment of 06 months alongwith fine of Rs.5,000/- for offence U/s. 427 IPC, Simple Imprisonment of 06 months alongwith fine of Rs.5,000/- for offence U/s. 434 IPC, Simple Imprisonment of 03 months alongwith fine of Rs.500/- for offence U/s. 447 IPC and Simple Imprisonment of 06 months alongwith fine of Rs.10,000/- for offence U/s. 3 of The Prevention of Damage to Public Property Act, 1984, in case FIR No. 07/2008, PS Jamia Nagar. In default of payment of fine qua sentence U/s. 427/434 IPC and Section 3 of PDPP Act, the appellant was ordered to undergo further sentence of Simple Imprisonment of 02 months. In default of payment of fine qua sentence U/s. 447 IPC, the appellant was ordered to undergo further sentence of Simple Imprisonment of 10 days. All the sentences were ordered to run concurrently. In addition, the appellant was directed to pay a compensation amount of Rs.5 lakh to DDA, within one month.
2. The prosecution case in brief was that on date and time unknown, appellant Asif Mohd (appellant herein) committed mischief by causing damage to the amount of more than Rs.50/- of the DDA land, situated at Khasra No.409, Village Jasola, by removing/destroying the barbed wire fencing upto 6ft. x 30ft, carried out by the DDA. The appellant encroached upon the said government land i.e. DDA land and constructed pucca concrete platform on it. The FIR was registered on complaint dated 23/11/2007 of complainant Subhash Chandra, Director, Land Management, DDA, New Delhi. On completion of investigation, the charge-sheet was filed in Court and accused Asif Mohd was CA No. 104/2018 Asif Mohd. Vs. State Page No.2/11 charged for offence U/s. 427/447/434 IPC & Section 3 of The Prevention of Damage to Public Property Act, 1984.
3. As per Trial Court record, to prove its case, the prosecution examined following 16 witnesses during trial of the case:
4. PW1/complainant Subhash Chandra, deposed that in November, 2007, when he was posted as Director, Land Management, DDA, area staff reported about encroachment in Jasola Village, after removing barbed wire fencing erected by DDA to protect its land comprising of Khasra No. 409 of Revenue State Jasola, regarding which the area staff had already tried to lodge complaints Mark 'A' and 'B' respectively, at Shaheen Bagh Police Chowki on 22/10/2007 and again on 29/10/2007. He deposed that a letter Ex. PW1/A (forwarded copies Mark 'C' and 'D') enclosed with complaint of area MLA Parvez Hashmi regarding encroachment on land earmarked for grave land in Village Jasola, was received from office of Lieutenant Governor, on 23/10/2007. He deposed that the Monitoring Committee, appointed by Hon'ble Supreme Court, visited the site on 15/11/2007 and instructed the area police to lodge complaint against the encroacher as well as directed the area staff of DDA to remove the encroachment. He deposed that on 23/11/2007 a formal complaint was given to area DCP to take action against the encroacher, since the area Police Chowki had failed to lodge complaint in the matter. He deposed that an area of 6ft. x 30 ft. was encroached by adjoining River Valley School after removing barbed wire fencing erected by DDA, and by covering additional ground with cement work.
CA No. 104/2018 Asif Mohd. Vs. State Page No.3/115. PW2 Mange Ram, Security Guard in Land Management Department, South-East, DDA, deposed that on 22/10/2007 he and Tara Chand were assigned duty to look after the fencing that covered the DDA land and to prevent it from destruction by anyone. He identified accused Asif Mohammad Khan in Court as the person who alongwith his associates removed the fencing of DDA land and encroached upon it for about 5-6 feet and when they asked them to not to do so, the offenders did not listen to them and asked them to leave that place.
6. PW3 Jai Prakash, Kanoongo, DDA, Vikas Sadan, deposed that on 16/05/2008, he was posted as Patwari (Land Management), DDA, and, on that day, his senior official Bijender Singh introduced him to the IO, to whom he handed over photocopy of the document of location plan of Award No. 21/92- 92 Ex. P-1 (Colly.), of PS Jasola.
7. PW4 M. L. Meena, Kanoongo, LAC South-East, was a summoned witness who produced original file bearing no. LAC/S/AFE/05 of Award No. 21/92-93, in which original copy of Kabja Karwai Ex. PW4/A of Khasra No. 409 min and copy of above said award were mentioned. He produced certified copy of Award No.21/92-93 Ex. PW4/B, certified by G. S. Meena, office Kanoongo, Record Room, Saket.
8. PW5 Dharampal, Tehsildar, LMS & S-II, DDA, deposed that on 29/08/2007, being Kanoongo, he alongwith AE Mr. J. N. Gupta and JE Mr. P. P. Singh obtained site plan pertaining to Khasra No.409, Jasola Village, regarding fencing by wire, CA No. 104/2018 Asif Mohd. Vs. State Page No.4/11 conducted fencing and prepared rough location plan. He deposed that as per Kabja Karwai proceedings a rough sketch plan was prepared prior to fencing by the AE and JE, and the said property was measured under his supervision by his staff.
9. PW6 J. N. Gupta, Asstt. Engineer (Civil), deposed that in the year 2007, at the instruction of Executive Engineer A. K. Goyal, he obtained a rough location plan Ex. PW6/B prior to fencing and Kabja Karwai proceedings dated 06/06/2007 pertaining to property bearing Khasra No.409 (supra), from Ishwar Chand, Kanoongo, NL/SE, DDA vide departmental noting Ex. PW6/A. He further deposed about fencing of the property in October 2007 on the basis of rough sketch plan, with the help of staff in presence of the then AE and JE and preparation of rough location plan after fencing the property by P. P. Singh (JE), that was checked by A. K. Goyal (AE). He produced original rough location plan Ex. PW6/C and after completion of fencing, he informed the concerned Executive Engineer about it and took photographs Mark 'X' and 'Y' of the property in question.
10. PW7 Ishwar Chand, Nayab Tehsildar, DDA, deposed that on 16/07/2007 he was posted as Kanoongo, DDA, Vikas Sadan, and, on that day, he alongwith Patwari Dheer Singh visited Khasra No.409, Jasola Village, where they met Daal Chand, Kanoongo, Land & Building Department, Hari Dutt, LAC Department, and, in whose presence, he conducted Kabja Karwai and measurement proceedings of the said property, which, on measurement, was found 15 bigha. He deposed that after CA No. 104/2018 Asif Mohd. Vs. State Page No.5/11 excluding 05 biswa of one mosque, the remaining area of 14 bigha 15 biswa was taken over from Daal Chand Kanoongo vide memo Ex. PW4/A. PW7 was formally cross examined by Ld. APP. In cross-examination by Ld. APP, PW7 admitted that on 29/08/2007, he alongwith Kanoongo Dharampal handed over the plot in Khasra No.409, Jasola Village, to AE and JE, for fencing the same.
11. PW8 Dheer Singh, Kanoongo, DDA, and PW9 Hari Dutt Kaushik corroborated the version of PW7 Ishwar Chand regarding Kabja Karwai and measurement proceedings of Khasra No. 409 (supra).
12. PW10 HC Rajinder Singh, Duty Officer, deposed that on 08/01/2008, at about 05:40PM, he received rukka Ex. PW10/A from SI Sandeep Ghai, made endorsement on it, registered FIR Ex. PW10/B and, thereafter, handed it back to IO.
13. PW11 Balraj Singh, Naib Tehsildar, deposed that in the year 2008 he was posted as Halka Patwari, Land Management, South-East Zone, Vikas Sadan, INA, New Delhi. He deposed that in the year 2007, he took possession over Khasra No. 409 min, Village Jasola, measuring 14 bigha 15 biswa, that LAC, Land & Building Department handed over to DDA on 16/07/2007; the said area was covered with barbed wire fencing. He deposed that accused Asif Mohammad Khan, being owner of River Valley School, situated at Jasola Village, Shaheen Bagh, had encroached upon the said property by removing its fencing. He deposed that the DDA removed the said encroachment on 30/01/2018 with the CA No. 104/2018 Asif Mohd. Vs. State Page No.6/11 help of local police and he filed complaint Ex. PW11/A to that effect to SHO PS Jamia Nagar.
14. PW12 Inspector Sandeep Ghai deposed that in the year 2008 he was posted as SI at PS Jamia Nagar and on 08/01/2008 the complaint Ex. PW1/A was marked to him for investigation. He made endorsement Ex. PW12/A on the said complaint and sent notice U/s. 91 CrPC to the Director, Land Management, DDA, on 02/04/2008.
15. PW13 Retired SI Hans Raj deposed that on 10/03/2008, on receipt of the case on transfer of SI Sandeep Bhai, he prepared site plan Ex. PW13/A at the instance of Guard namely Tara Chand, recorded his statement and the statement of Mange Ram, collected documents Mark 'A1' to 'A4' from concerned department in respect of Khasra No. 409 and, on completion of investigation, filed the charge-sheet.
16. PW14 Vijender Singh Chaudhary deposed that in the year 2007 he was posted as Field Kanoongo in Land Management Department, South-East Zone, which took possession of Khasra No.409, Jasola Village, measuring 14 bigha 15 biswa, on 16/07/2007. He deposed that Dal Chand (Kanoongo), L&B Department, Ishwar Chand (Kanoongo) and Dheer Singh (Patwari) from DDA, N. L. Department, visited Khasra No.409, Jasola Village, where Ishwar Chand executed Kabza Karwai and obtained photocopy of documents from Dal Chand in respect of property in question. Police recorded his statement.
CA No. 104/2018 Asif Mohd. Vs. State Page No.7/1117. PW15 Parvez Hashmi deposed that on 23/10/2007 he was MLA of Okhla Constituency and, on that day, he wrote a letter Ex. PW15/A to Lieutenant Governor, Govt. of Delhi, regarding removal of all types of encroachment of earmarked piece of land for provision of graveyard at Khasra No.409 (supra).
18. PW16 Prem Pal Singh deposed that on 29/07/2007 he was posted as Jr. Engineer, South-District-III, ED-IV, DDA, Laxmi Nagar, and, on that day, the work for installation of wire fencing of Khasra No.409 (Supra) was marked to him and J. N. Gupta (AE). He completed the said work by 01/10/2007 and informed about it to his senior officer, and, thereafter, the said land was handed over to DDA, Land Management. IO recorded his statement.
19. Statement of accused Asif Mohammad Khan was recorded U/s. 313 CrPC. He denied all incriminating evidence and asserted that the witnesses examined by prosecution were interested witnesses, who falsely implicated him in the case. He asserted that he was innocent, never involved in any criminal activities and the case was politically motivated.
The accused did not avail of the opportunity to lead evidence in defence. Upon hearing the final arguments from both sides, Ld. Trial Court vide its judgment dated 20/01/2018 held appellant/accused Asif Mohd guilty of offence U/s. 427/434/447 IPC and Section 3 of The Prevention of Damage to Public Property Act, 1984, and sentenced him vide order on sentence dated 05/02/2018.
CA No. 104/2018 Asif Mohd. Vs. State Page No.8/1120. Ld. Addl. PP for State/respondent has opposed the appeal stating that prosecution has proved its case against the appellant and Ld. Trial Court has rightly convicted and sentenced him.
21. I have heard rival contentions from both sides and perused the record.
22. Ld. Counsel for appellant argued that PW2 Mange Ram, Security Guard, wrongly deposed that on 22/10/2007 he saw appellant Asif Mohd removing/uprooting the fencing of DDA land and encroaching upon it upto 5-6 ft. depth. Ld. Counsel for appellant referred to the site plan Ex. PW6/B prepared by DDA officials on 29/08/2007 pertaining to its land in Khasra No.409, Village Jasola, measuring 15 bigha to be fenced with barbed wire. In the said site plan, prepared on 29/08/2007, a pre-existing encroachment on the land could be seen adjoining to the private school belonging to the appellant. Another site plan Ex. PW6/C of same land was prepared by DDA officials after completing the fencing work and it also shows the passage encroached upon the DDA land, thereby reflecting that there was no change in ground situation before and after fencing.
23. Per contra, Ld. Addl. PP argued that the site plan Ex. PW6/C depicts the closure of access to DDA land in Khasra No.409 (supra) from school of the appellant through barbed wire fencing. The appellant removed / uprooted the barbed wire fencing that was adjoining to his school, to trespass into the DDA land.
CA No. 104/2018 Asif Mohd. Vs. State Page No.9/11Indeed, encroachment / trespass by appellant into land belonging to DDA was the prime reason why Kabza Karwai proceedings Ex.PW4/A was conducted by concerned government officials of DDA, LAC Department and Land & Building Department. The site plan Ex. PW6/B was prepared by DDA officials to earmark the open land required to be fenced with barbed wire. The site plan Ex. PW6/C was prepared after fencing of the open land in Khasra No.409 (supra) on 01/10/2007 (PW16 Prem Pal Singh). There is no substance in arguments that on 22/10/2007 PW2 Mange Ram, Security Guard of DDA, could not have seen the appellant uprooting / removing the barbed wire fencing to encroach upon the government land. In fact, there was no effective cross examination of PW2 who deposed about witnessing the offence of removal of barbed fencing and criminal trespass committed by the appellant. The argument that there was no encroachment on government land, is vacuous and untenable in view of evidence led by the prosecution.
24. Ld. Counsel for appellant argued that Ld. Trial Court could not have relied upon testimony of PW13 retired SI Hans Raj as he did not complete his testimony and did not make himself available for cross examination by accused. Indeed, the Trial Court record reflects that PW13 retired SI Hans Raj deposed before the Court on 22/03/2017 and his cross examination was deferred on his own request. Thereafter, he did not appear before the Court to complete his testimony. His incomplete testimony cannot be read in evidence against the accused. Anyhow, the offence of trespass and mischief were proved by DDA officials and PW2 Mange Ram. Discarding the testimony of PW13 from CA No. 104/2018 Asif Mohd. Vs. State Page No.10/11 consideration would not adversely affect the prosecution case.
25. In view of testimonies of prosecution witnesses and documentary evidence, the prosecution was able to bring home the charged offence against the appellant. There is no substance in arguments that the uprooted barbed wire was not seized by the IO and no photograph of alleged encroachment was taken.
26. Ld. Trial Court rightly appreciated the evidence to convict the appellant. The impugned judgment of conviction is just and well reasoned. Therefore, the present appeal, so far as it impugns the judgment of conviction for offence U/s. U/s. 427/447/434 IPC & Section 3 of The Prevention of Damage to Public Property Act, 1984, stands dismissed.
27. The issue of sentence shall be considered on completion of due procedure. Digitally signed by VISHAL VISHAL SINGH Announced in the open court SINGH Date:
2024.08.28 dated: 28.08.2024 16:01:55 +0530 (VISHAL SINGH) ADDL. SESSIONS JUDGE-05, SOUTH-EAST, SAKET COURTS, NEW DELHI CA No. 104/2018 Asif Mohd. Vs. State Page No.11/11