Delhi District Court
State vs . Kuldeep Singh & Anr. on 20 December, 2021
IN THE COURT OF MS TANYA BAMNIYAL, METROPOLITAN
MAGISTRATE-02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. KULDEEP SINGH & ANR.
FIR No.242/2012
U/s : 448/506(I)/34 IPC
P.S. : Malviya Nagar
Date of Institution : 18.08.2012
Date on which case reserved for Judgment : 30.11.2021
Date of judgment : 20.12.2021
JUDGMENT
1.FIR No. of the case : 242/2012
2.Date of the Commission : 23.06.2012 at 12:30 P.M.
of the offence
3.Name of the accused persons : (1) Kuldeep Singh
S/o Late Sh. Kehar Singh
(2) Mukesh
W/o Sh. Kuldeep Singh
4.Name of the complainant : Smt. Chandermukhi
W/o Late Sh. Kehar Singh
R/o House No.11-A,
Savitri Nagar, Malviya Nagar,
New Delhi.
5.Offence complained of : 448/506 (part I)/34 IPC
6.Plea of accused : Pleaded not guilty.
7.Final order : Acquitted
FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 1 of 12
BRIEF FACTS:-
1. Briefly stated the case of the prosecution is that on 23.06.2012 at 12:30 pm at No.11-A, Savitri Nagar, Malviya Nagar, New Delhi, within the jurisdiction of PS Malviya Nagar, both accused persons committed house trespass by entering into the aforementioned house belonging to complainant Smt. Chander Mukhi when same was in the possession of her daughter Suresh and both accused persons remained there unlawfully with intention to disposes her from there in furtherance of their common intention and threatened to kill her and thereby both accused persons committed offences punishable u/sec 448/506 (part I)/34 IPC.
2. FIR No.242/2012 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under section 448/506/34 IPC was filed before the court on 18.08.2012.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 448/506(part I)/34 IPC was framed against the accused Kuldeep Singh and Mukesh to which both the accused pesons pleaded not guilty and claimed trial on 07.10.2013.
THE TRIAL PROCEEDINGS:-
5. In order to establish its case, the prosecution has examined eight witnesses.
(a) PW-1 Chandramukhi is the complainant who deposed regarding the incident. She deposed that she had rented her first floor to a company and later on it was a vacant premise and she had locked the said floor. She heard FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 2 of 12 noise in the night and reached at first floor and saw that her son Kuldeep i.e. accused and his wife Mukesh i.e. co-accused had broken the lock of the first floor. Further when she asked why they had broken the lock, they both retaliated and tried to beat PW1 and suddenly she fled away from there and locked herself in a room at ground floor. She dialed at 100 number where police came at the spot after 15 minutes. She accompanied the police officials and reached to both the accused pesons. Further daughter of complainant had also come to her residence those days and after 4-5 days she left the residence. Further complainant observed that the furniture/ goods had been kept by the accused persons on her first floor and she requested them to vacate the floor but they threatened her with dire consequences. Witness correctly identified both the accused persons before the court.
(b) PW-2 Sh. Rajender deposed that there was a quarrel between complainant Smt. Chander Mukhi and his son Kuldeep i.e. accused regarding rent. Further he deposed that accused Kuldeep Gulia and his family were residing at the second floor of the house in question. Further he deposed that accused Kuldeep with his family were residing on 3 rd floor after they vacated the 2nd floor of the property on account of dispute between him and complainant. Further in the year 2012 accused Kuldeep Gulia and his family were residing at the 2nd floor of the property in question. Ld. APP for the State also cross-examined the witness.
(c) PW-3 Ms. Kamal Kumari who is the daughter of the complainant deposed regarding the incident. She produced the original rent agreement dated 01.01.2011 executed between complainant and M/s. Idea Works and photocopy of same is Ex.PW3/1, original notice dated 02.12.2011 issued by the authorized signatory Idea Works Design and Strategy Pvt. Ltd. addressed to complainant qua termination of tenancy and photocopy of same is Ex.PW3/2, three FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 3 of 12 photographs of the second floor of the premises bearing No.11-A, Savitri Nagar, New Delhi which were taken by her on 22.05.2012 after Idea Works Design and Strategy Pvt. Ltd. handed over the possession of the same which was handed over by the company on 31.12.2011 and same are Ex.PW3/3 where in one of the photographs her mother i.e. complainant could be seen as Mark X. She also produced the original notarized SPA dated 18.09.2015 executed by Sh. Kehar Singh in favour of complainant and photocopy of same is Ex.PW3/4 and on the basis of this SPA her mother i.e. the complainant executed a Gift Deed dated 01.03.2011 in her favour qua property in question and photocopy of the Gift Deed is Ex.PW3/5. Witness correctly identified both the accused persons before the court.
(d) PW-4 HC Vandana who is duty officer. He deposed that his duty hours were from 08:00 A.M. to 04:00 P.M. At about 12:40 P.M. he received a rukka through Ct. Shyam Prakash sent by SI Narender. On the basis of same he prepared the present FIR vide Ex.PW4/B and also endorsed the said rukka vide Ex.PW4/A.
(e) PW-5 HC Shyam Prakash deposed that he was on patrolling duty at Panchsheel Park, Savitri Nagar, New Delhi. That day IO called him and thereafter he went to the spot i.e. 11-A, Savitri Nagar, New Delhi. Further IO handed over him the rukka for registration of FIR and thereafter he went to PS. He came back to the spot after lodging the FIR alongwith copy of FIR and original rukka and same were handed over to the IO. On 26.06.2012, IO arrested the accused Kuldeep Singh in his presence vide arrest memo Ex.PW5/A. IO released the accused on bail. Further witness correctly identified the accused Kuldeep before the court.
FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 4 of 12(f) PW-6 Sh. Sanjay Goswami deposed that he has been working as Record Attendant, Sub-Registrar-V, Mehrauli, New Delhi. He produced the original gift deed bearing no.3761, book no.1, volume no.10984, on pages 159 to 168 dated 04.03.2011 kept in their record. He had compared the copy of gift deed and exhibited the same as Ex.PW6/A.
(g) PW-7 SI Santosh Chauhan deposed that on 17.07.2012 he was present at the Office of ACP, Hauz Khas alongwith IO SI Narender where complainant and her daughter came at the said office. Thereafter he alongwith IO went to the spot i.e. 11-A, Savitri Nagar, New Delhi. Further IO arrested the accused Mukesh in his presence vide arrest memo Ex.PW7/A. IO released the accused on bail. Further witness correctly identified the accused Mukesh Kumari before the court.
(h) PW-8 Inspector Narender Kumar, who is the IO of the present case. He deposed that on 23.06.2012 he alongwith one W/Ct. Ravneet went to the house of complainant for verification where they met complainant Smt. Chandramukhi. He recorded the complaint of complainant. He prepared the rukka vide already Ex.PW4/A. He interrogated one tenant namely Rajinder and recorded his statement and thereafter he prepared the site plan at the instance of complainant vide Ex.PW8/A. Thereafter he went to the 3rd floor of the accused in the same building but the main door of accused was locked. Further on 27.06.2012 he alongwith Beat Constable Shyam Prakash went to the house of accused where accused was present and accordingly he interrogated and arrested him. He also obtained the gift deed and he got verified from the SDM, Hauz Khas which were found to be genuine. He also arrested co-accused Mukesh and he released her on bail. Further witness correctly identified both the accused persons before the court. Witness also correctly identified the three photographs which is already Ex.PW3/3.
FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 5 of 126. Prosecution evidence was closed on 19.05.2018. Thereafter, the Statement of Accused (SA) under section 313 Cr.P.C. r/w section 281 Cr.P.C was recorded on 29.05.2018. Accused persons sought to lead defence evidence.
7. In defence, accused Kuldeep Singh himself examined as DW1. He deposed that his father passed away on 27.03.2011 and gifted the property in question in the month of October, 2009. Accused has stated that as per the gift deed he is the absolute owner of the property in question. He also stated that he is in the possession of second floor of the property in question. Accused also examined SI Sunil Dagar as DW2 who exhibited the gift deed executed by Kuldeep Singh in favour of his wife namely Mukesh i.e. Ex.DW2/1. Thereafter, DE was closed on 26.03.2019.
FINAL ARGUMENTS:-
8. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for accused persons. It was argued by ld. APP for the State that the prosecution has proved all the ingredients u/sec 448/506(I)/34 IPC beyond reasonable doubt thus accused persons be convicted for the offences. Per contra, it is argued by the Ld. Counsel for accused persons that the prosecution has failed to prove the case beyond all reasonable doubt and accused persons be acquitted for the offences.
9. I have heard the arguments and perused the record.
REASONS FOR DECISION:-
10. It is the case of the prosecution that on 23.06.2012 at 12:30 P.M. at house no.11A, Savitri Nagar, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar accused Kuldeep Singh and his wife Mukesh committed housetress pass by entering into the aforementioned house stated to be FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 6 of 12 belonging to the compainant Smt. Chander Mukhi when the same was in the possession of her daugher Suresh and thus they both remained there unlawfully with the intention to dispossess the complainant from there in furtherance of their common intention and threatened to kill the complainant and thereby allgeged to have committed offences punishable u/sec 448/506 (I)/34 IPC.
11. Before analyzing the evidence on record, this court shall dwell upon the constituents of the offences u/s 448/506(I)/34 of the IPC, which are noted down below;
House trespass for which punishment is provided in section 448 IPC is defined in section 442 IPC as,"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 ''housetrespass'."
Criminal trespass has been defined in Section 441 IPC as, "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimate, 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'."
Thus, it is necessary for an offence punishable u/s 448 IPC that essential ingredients of criminal trespass and house trespass must be fulfilled. For commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
1) entry into or upon property in possession of another;
2) if such entry is lawful then unlawfully remaining upon such property;
3) such entry or unlawful remaining must be with intent: (i) to commit offence or; (ii) to intimidate, insult or annoy the person in possession of the property.
Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 7 of 12 against ownership of property. The word 'possession' used in the definition of 'criminal trespass' as has been observed in a catena of judgments includes both 'actual possession' as well as 'constructive possession'.
In Sant vs. The Union of India AIR 1962 HP 1, the Hon'ble Himachal Pradesh High Court observed that, "the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessio naturalis and possession in law as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I.P.C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word possession with the words 'actual and physical'......annoyance will be caused to the owner of vacant property if the same is trespassed upon with a view to oust him and he is not in collusion with the trespasser. He may have to take steps to recover possession and be involved in litigation and it cannot be gainsaid that to be involved in litigation is no pleasure".
12. Further, in order to attract the section 506 IPC the intention of the accused must be to cause alarm to the victim. Mere expression of words without any intention to cause alarm, would not suffice. To constitute an offence u/sec 506 IPC it must be shown that the person charged actually threatened another with injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with the intention to cause alarm.
13. Thus in the present case in hand it can be seen from the evidence on record that the complainant in the tehrir i.e. Ex.PW1/A has admitted the possession of the accused persons since 26.03.2011 on the third floor of the property in question and also admitted that litigation is pending between the parties pertaining to the aforesaid property in question. The complainant has also stated that she is in possession of the first and second floor of the property FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 8 of 12 in question. She further stated that the second floor of the property is on rent and the rent is being paid by the tenants to the complainant.
14. The complainant contradicts herself when she has on one hand stated that accused persons are in possession of the third floor of the property in question whereas in the same breath states that she is having possession over the three rooms of the third floor of the property in question. It is also admitted that second floor of the property in question was lying vacant and her daugter namely Suresh alongwith her children came to reside on the second floor of the property in question and when the complainant objected on her stay on the second floor of the property in question her daughter Suresh agreed to leave the premises within one or two days however, she did not do so and the accused persons alongwith their children started residing on the second floor of the property in question with their belongings. Thereafter, after 4-5 days daughter of the complainant namely Suresh left the premises however, accused persons forcefully started residing on the second floor of the property in question.
15. It is pertinent to note that there is not even a whisper by the complainant that she had put a lock on the first floor of the property in question in her complaint Ex.PW1/A whereas in her examination in chief it is stated by the complainant that she had rented the first floor of the property in question and later on when it was a vacant premise, she had put a lock on the first floor of the property in question. It is further deposed by the complainant that she heard some noise in the night and when she reached the first floor of the property in question she saw that her son Kuldeep and his wife had broken the lock of the first floor and when she questioned them regarding the broken lock both the accused persons retialiated and tried to beat the complainant. Consequently she fled away from there and locked herself in a room at ground floor. It is further stated by her that the furniture or books have been kept by the FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 9 of 12 accused persons in the first floor of the property in question and when she had requested the accused persons to vacate the said floor they threatened the complainant with dire consequences.
16. It is clear from the above that, there are material contradictions in the testimony of the complainant regarding the factum of possession in the premises in question. The complainant admits the possession of accused persons on the third floor of the property in question vide Ex.PW1/A whereas in her cross-examination by the Ld. Counsel for the accused she denies the possession of the accused in any part of the property in question in toto. It is deposed by the complainant that there are tenants in the property in question and there is a tenant namely Rajinder in the top floor of the property in question who has been paying rent to the complainant from the past two years and has given acknowledgement in this regard to the complainant. However the complainant has not brought any evidence on record to show that the tenant namely Rajinder has been paying the rent to the complainant, whereas PW2 Mr. Rajinder deposed before this court that he had been paying rent of Rs.2,500/- to accused Kuldeep continously and also proved that accused Kuldeep and his family were residing at the second floor of the property in question. He further deposed that accused Kuldeep and his family were residing on the third floor after they vacated the second floor of the property on account of dispute between the accused and her mother/ complainant.
17. It is also pertinent to note that PW3 daughter of the complainant namely Kamal Kumari deposed in her examination in chief that on 23.06.2012 she was out of India and on that day she received a call from her mother who informed her that some noises were coming from the second floor and she found that lock of the second floor was broken and accused persons were found at second floor of the property in question. There is also material contradiction FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 10 of 12 in the testimony of PW1 and PW2 regarding the broken lock as well as the floor of the property in question. It is clear from the record that on one hand PW1 has nowhere mentioned of breaking of locks of any floor of the property in question in her complaint to the police i.e. Ex.PW1/A whereas subsequently in her examination in chief it was mentioned that the accused persons have broken the lock of first floor of the property in question and PW2 deposed that it was informed by the complainant to her that the lock of the second floor of the property in question has been broken. Thus it seems that the narrative regarding the breaking of locks and tresspass in the property in question is an after thought by the complainant and does not inspire confidence of this court.
18. It is further pertinent to note that there is a gift deed which is placed on record between the original owner Sh. Kehar Singh i.e. father of accused and accused on the basis of which another gift deed has been executed by accused in the name of co-accused namely Mukesh i.e wife of accused Kuldeep. Further there is a SPA dated 18.09.2010 in favour of complainant Chandermukhi on the basis of which gift deed has been executed by Chandermukhi in the name of Kamal Kumari i.e. daughter of the complainant.
19. It is settled law that the question of title is not to be raised on the plea of possession as the offence is against the possession and not against the ownership of property. Admittedly there is a cloud over the title of the property in question. This court is not required to determine the question of title the only requirement which is to be seen is whether the accused has tresspassed in the property in question which was alleged to have been in the possession of the complainant.
20. It is thus clear from the evidence on record, testimony of witnesses, and from the above said discussion that the complainant was not in exclusive FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 11 of 12 possession of the property in question during the alleged incident and this court is of the opinion that no offence u/sec 448 IPC is proved qua accused persons.
21. Further the prosecution has also failed to prove the offence u/sec 506 IPC as no evidence has come on record which can suggest that the complainant was alarmed in any manner. There are mere allegation of criminal intimidation and threat to kill. It is only stated by the complainant that both the accused persons have threatened to kill her. It is settled law that mere empty threats do not constitute offence punishable u/sec 506 IPC. There are only allegation that accused persons gave threats to the complainant, there is no mention that the alleged threat caused alarm to the complainant. The witness examined by the complainant have also not deposed that any such threat caused such alarm to the complainant. Hence in absence of any evidence or deposition with regard to the alarm to the complainant in consequent to the alleged threats, the offence u/sec 506 IPC is not proved against the accused persons.
22. Thus, in view of the forgoing reasons this court is of the view that prosecution has failed to prove its case beyond all reasonable doubt qua accused persons, hence accused persons namely Kuldeep Singh and Mukesh stand acquitted for the offence u/sec 448/506(I)/34 IPC.
23. File be consigned to record room after necessary compliance.
Announced in the Court on 20.12.2021 (TANYA BAMNIYAL) MM-02(SD)/20.12.2021 Certified that this judgment contains 12 pages and each page bears my signatures.
(TANYA BAMNIYAL) MM-02(SD)/20.12.2021 FIR No.242/2012 State Vs. Kuldeep Singh & Anr. Page 12 of 12