Delhi District Court
State vs Sukhbir & Ors. on 20 September, 2018
State v. Sukhbir & Ors.
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Sukhbir & Ors.
FIR No. 50/2007
PS Mehrauli
U/s 452/352/506/34
147/149 IPC
JUDGMENT
1 Serial No. of the case : 2031322/2016
2 Date of commission : 16.08.2006
3 Date of institution of the case : 26.04.2008
4 Name of complainant : Smt. Dharampali
5 Name of accused : (I) Sukhbir S/o Sh. Ram
Dass, (Abated)
(II) Sher Singh S/o Sh.
Nathu Sngh, (Abated)
(III) Subhash S/o Sh.
Sumarta Singh,
(IV) Uma Shankar S/o Sh.
Digitally Shobha Ram,
signed by
VAIBHAV (V) Ashok S/o Sh. Bhagwan
VAIBHAV MEHTA Dass,
MEHTA Date: (VI) Mukesh S/o Sh. Kiran
2018.09.22 Chand Tyagi
12:19:05
+0530 (VII) Ashok S/o Sh.
Tilakram
FIR No. 50/2007, PS: Mehrauli 1 of 15
State v. Sukhbir & Ors.
All R/o Village Rawana @
Badagaon, Teh. Khekada,
Dist. Bagpat, UP.
6 Offence complained of : U/s 452/352/506/34/147/149
IPC
7 Plea of accused : Plead not guilty
8 Arguments heard on : 13.09.2018
9 Final order : Acquitted
10 Date of judgment : 20.09.2018
BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of prosecution are that on on 16.08.2006 at about 12.45 am, at H. No. 285, Village Asola, Fatehpur Beri, ND, all accused persons constituted an unlawful assembly with the common object to commit offences of criminal trespass, criminal intimidation, use of criminal force and with the aforesaid object entered into the property of complainant Dharampali having made preparations to cause hurt/ assault and intentionally used criminal force against complainant and her family members without their consent intending to cause injury, fear and annoyance to the complainant and her family members and also threatened them to cause injury on their person, reputation with intent to cause alarm to them. Accordingly the FIR u/s 452/506/34 IPC was registered against the accused persons.
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2. During course of trial, proceedings were abated against accused Sukhbir vide order dated 25.02.2011.
CHARGE
3. Prima facie case of commission of offences under Section 452/352/506/147/149 IPC was made out against remaining accused persons and charge u/s 452/352/506/147/149 IPC was framed upon remaining accused persons on 08.12.2011 wherein they pleaded not guilty and claimed trial.
4. During course of trial, proceedings were abated against accused Sher Singh vide order dated 04.05.2017.
EVIDENCE LED BY THE PROSECUTION
5. The prosecution has examined five witnesses.
PROSECUTION WITNESS
PW1 Smt. Dharampali Complainant
PW2 Sh. Chander Pal Husband of complainant
PW3 ASI Jagdish Prasad Duty Officer
PW4 Insp. Sanjeev Solanki Prepared Rukka
PW5 SI Lal Bahadur IO of the present case
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State v. Sukhbir & Ors.
6. Prosecution has relied upon the following documents: Exhibited by Contents Exhibits PW1 Dharampali Complaint PW1/A PW3 ASI Jagdish Copy of FIR and PW3/A & PW3/B Prasad endorsement on rukka PW4 Insp. Sanjeev Rukka PW4/A Solanki PW5 SI Lal Site plan PW5/A Bahadur Complainant's statement PW5/B Arrest memos PW5/C to PW5/H
7. PW1 Ms. Dharampali deposed that she made a complaint Ex. PW1/A and narrated the whole incident to the police regarding the forcible entry and the beatings and threats given to her by the accused persons.
8. PW2 Sh. Chander Pal deposed that he was abducted by all accused persons and on 15.08.2006 all the said persons left him near Shamshan Ghat of Fatehpur and after regaining consciousness, he went to his home and on the same night, all accused persons attacked upon them at H. No. 285, Village Asola, Fatehpur Beri and also gave beatings to his wife Dharampali and children Krishan, Deepak, Devinder and Sandeep after which someone called at 100 number and police came and arrested all accused persons from the house of Sher Singh.
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9. PW3 ASI Jagdish Prasad proved the FIR Ex. PW3/A and endorsement on rukka Ex. PW3/B.
10. PW4 Insp. Sanjeev Solanki deposed that on 26.10.2006, one complaint alongwith order dated 12.10.2006 of Ld. MM, Sh. V. M. Gautam vide order Ex.PW4/A was marked to him by SHO and on 13.01.2007, he made endorsement on complaint and prepared rukka as Ex.PW4/B.
11. PW5 SI Lal Bahadur deposed that on 13.01.2007, investigation of the present case was marked to him and on 16.01.2007, he recorded statement of complainant Ex. PW5/B after which he formally arrested all accused vide arrest memos Ex. PW5/C to PW5/H.
12. Thereafter, PE was closed on 24.04.2018.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
13. Joint statements of all accused u/s 313 Cr.PC were recorded on 08.05.2018 separately wherein they opted to lead evidence in their defence.
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State v. Sukhbir & Ors.
DEFENCE EVIDENCE
14. The accused persons have examined five witnesses.
DW1 Sh. Mukesh Accused himself
DW2 Sh. Subhash Accused himself
DW3 Sh. Ashok Accused himself
DW4 Sh. Gyanender Singh Resident of the same
village
DW5 Sh. Brijesh Tyagi Block pardhan from 2002-
05
15. The accused persons has relied upon the following documents: Exhibited by Contents Exhibits DW2 Sh. Subhash Copy of judgment DW2/A DW3 Sh. Ashok Will dated 14.09.1998 DW3/A
16. DW1 Mukesh, DW2 Subhash and DW3 Ashok are the accused persons who have in their deposition u/s 315 Cr.PC have deposed that there is a land dispute between complainant and accused persons and the Panchayat was called several time and Panchayat had ordered that the disputed land was divided equally between complainant Dharampali and accused Ashok and the complainant aggrieved by the order of Panchayat has lodged this false complaint to implicate them.
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17. DW4 Sh. Gyanender Singh and DW5 Sh. Brijesh Tyagi both were present at the Panchayat meeting wherein the abovesaid order of the Panchayat was passed and have supported the deposition of the accused persons on this point.
18. Thereafter DE was closed on 03.08.2018 and matter was listed for final arguments.
FINAl ARGUMENTS
19. The Ld. APP has submitted that prosecution witnesses have given consistent statements and statement of the complainant Dharampali finds corroboration from the testimony of other prosecution witnesses. Therefore, the prosecution has been able to prove its case against accused persons beyond doubt. On the other hand, ld. Defence counsel has argued that there are material inconsistencies in the deposition of the complainant and they are at variance with the statement given by her u/s 161 Cr.PC. The counsel for the accused further argued that it is a motivated and false complaint and the prosecution has failed to discharge the onus of proof and so benefit of doubt be given to the accused.
LEGAL PROVISIONS
20. Section 441 IPC defines as Criminal trespass: Whoever FIR No. 50/2007, PS: Mehrauli 7 of 15 State v. Sukhbir & Ors.
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 448 IPC defines Punishment for housetrespass: Whoever commits housetrespass shall be punished with imprisonment of either description for a term which may extend to one year, of with fine which may extend to one thousand rupees or with both.
Section 452 IPC defines as Housetrespass after preparation for hurt, assault or wrongful restraint: Whoever commits housetrespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 503 defines criminal intimidation as under FIR No. 50/2007, PS: Mehrauli 8 of 15 State v. Sukhbir & Ors.
Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to commit to do any act which that person is legally to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Ingredients of section 503 IPC:
(I) Threatening a person with any injury:
(i) To his person, reputation, or property; or
(ii) To the person or reputation of any one in whom that person is interested.
(II) Threatening a person with any injury:
(a) to cause alarm to that person, or
(b) to cause the person to do any act which he is not legally bound to do as the any act which he is not legally bound to do as the means of avoiding the execution of such threat. Or
(c) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
Whoever threatens another The gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened, and it is clear that before it can have any FIR No. 50/2007, PS: Mehrauli 9 of 15 State v. Sukhbir & Ors.
effect upon his mind it must be either made to him by the person threatening or communicated to him is some way. The threat referred to in this section must be a threat communicated, or uttered with the intention of its being communicated to the person threatened for the purpose of influencing his mind.
Section 506 IPC defines as under Punishment for criminal intimidationWhoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 146 IPC defines Rioting: Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence is rioting.
Section 147 IPC defines as Punishment for rioting:
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 149 IPC defines as Every member of unlawful FIR No. 50/2007, PS: Mehrauli 10 of 15 State v. Sukhbir & Ors.
assembly guilty of offence committed in prosecution of common object: if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 351 IPC defines Assault: Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehended that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Section 352 IPC defines Punishment for assault or criminal force otherwise than on grave provocation: Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
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State v. Sukhbir & Ors.
COURT OBSERVATIONS
21. I have considered the submissions of Ld. APP for the State and of Ld. Defence counsel. I have also gone through the evidence on record very carefully and after assessing it, this court makes the following observations:
(a) PW1/ complainant Dharampali is the main prosecution witness who in her deposition stated that on the intervening night of 15/16.08.2006 at about 12.45 am, the accused persons forcibly entered into the house by breaking the main gate and gave beatings to her and her family members i.e. her daughter in law and grandson.
PW1 further stated that blood started oozing out from her head and her grandson sustained injuries on his right hand.
(b) PW2 Chanderpal is the husband of the complainant. However, he was not present at the spot on the day of the incident and is therefore, hearsay witness. The complainant in her cross examination has herself stated that her husband was not present in the house when the accused persons were giving beatings to her and her grandson.
(c) No MLC has been placed on the record by the
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prosecution to support the allegations of the complainant.
(d) No weapon/ dandas have been recovered from the accused persons and also no photo regarding the broken gate or of the spot have been placed on record by the prosecution to support the allegations of the complainant.
(e) PW1 Dharampali had herself stated in cross examination that she did not go to the hospital. There are various inconsistencies in the testimonies of the complainant from that given by her in her complaint to the police to that given by her in the court.
(f) The complainant PW1 in her complaint given to the police and in her application u/s 156 (3) Cr.PC had stated that the accused persons had trespassed into her house with the intention to assault and kidnap the son of the complainant, however, no such fact was stated by her in her examination in chief.
(g) Moreover in her cross examination the complainant had stated at the time of incident she was accompanied by her niece Rekha and the wife of her nephew namely Geeta, however, neither Rekha nor Geeta were called by the prosecution and were not even named in the list of prosecution witnesses despite the fact that they FIR No. 50/2007, PS: Mehrauli 13 of 15 State v. Sukhbir & Ors.
were present with the complainant at the time of beatings.
(h) The complainant in her examination in chief had stated that she and her grandson were given beatings by the accused as a result of which her grandson sustained injuries on his right hand. However, in her cross examination dated 18.05.2016 the complainant had stated that no person except herself had gotten injured as a result of the beatings given by the accused persons.
(i) Various inconsistencies and contradictions have come on record qua the testimony of the complainant PW1 Dharampali and her inconsistent testimonies have not been corroborated by any material on record.
However, the accused persons in their defence have been able to prove the factum of existence of a land dispute between the parties as to which the Panchayat had passed orders so as to resolve the dispute.
(j) Therefore, this court taking into account inconsistent and uncorroborated testimony of the complainant coupled with the defence evidence led by the accused persons and further taking into account the material placed on record, is of the view that the prosecution has failed to prove the guilt of the accused presons qua FIR No. 50/2007, PS: Mehrauli 14 of 15 State v. Sukhbir & Ors.
the offences u/s 147/149/352/452/506/34 IPC and the complainant has failed to substantiate her allegations leveled against the accused persons.
22. For the reasons mentioned above, this court is of the view that the prosecution has failed to prove the guilt of the accused persons namely Subhash, Uma Shankar, Mukesh, Ashok S/o Sh. Tilak Ram and Ashok S/o Sh. Bhagwan Dass for offences u/s 147/149/352/452/506/34 IPC. Therefore, they are acquitted for offences 147/149/352/452/506/34 IPC. Accused persons are directed to furnish their bail bonds and surety bonds u/s 437A Cr.PC.
Announced in the open (VAIBHAV MEHTA)
court on 20.09.2018 MM5 (South), Saket Courts
New Delhi
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