Delhi District Court
State vs . Jai Singh & Anr. on 26 November, 2013
IN THE COURT OF SHRI KULDEEP NARAYAN, ADDL. CHIEF
METROPOLITAN MAGISTRATE/EAST/KARKARDOOMA COURTS, DELHI.
FIR No. 130/00
PS: New Ashok Nagar
State Vs. Jai Singh & Anr.
a. ID No. of the case : 02402R0049282003
b. Date of institution : 12.02.2003
c. Name of the complainant : Smt. Prakasho Devi
W/o Late Sh. Sita Ram
R/o Village Jinol, PS Natthal,
PS Patiali, District Kasganj, U.P.
d. Name of the accused. : (1). Sant Ram (since deceased)
S/o Sh. Atar Singh
(2). Jai Singh @ Shri Krishan
S/o Sh. Sant Ram
Both R/o B1169/70,
Gharoli Dairy Farm, Delhi.
e. Offence complained of : U/s 380/427/448/506(1)/34 IPC
or proved
f. Plea of accused : Pleaded not guilty
g. Order reserved on : 26.10.2013
h. Final order : Convicted
i. Date of order : 20.11.2013
Brief Statements of the reasons for such decision:
1.The brief facts of the prosecution case are that in between April 1998 and 15.07.1999, the accused persons committed criminal trespass in plot no. B1162, Gharoli Dairy Farm, Delhi in possession of the complainant Smt. Prakasho Devi, mischief by breaking the partition wall & Iron Gate of the plot and also committed theft of the bank/corporation documents/receipts etc. which were kept in the room constructed in the aforesaid plot. The accused persons also criminally intimidated the complainant Smt. Prakasho Devi when she raised objections to their acts. Subsequently, an FIR No.130/00 u/s 380/427/448/506(1)/34 IPC was registered against the accused persons and investigation was carried out.
2. After completion of investigation chargsheet was submitted and both the accused persons were summoned to face trial.
3. A prima facie case U/s 380/427/448/506(1)/34 IPC was made out against the accused persons and charge was framed against them to which they pleaded not guilty and claimed trial.
4. The prosecution got examined Smt. Prakasho Devi (PW1), Sh. Ram Sunder (PW2), Sh. Mukesh (PW3), Sh. Ram Singh (PW4), Sh. Prem Singh (PW5), Sh. Jabbar Singh (PW6) & Inspector Jaswant Singh (PW
7) in all.
5. Vide order dt. 27.08.2002, proceeding qua accused Sh. Sant Ram was abated.
6. After completion of the prosecution evidence, the statement of accused Jai Singh was recorded u/s 281 r/w Sec. 313 Cr.P.C. separately on 17.10.2013 wherein he denied all the allegations levelled against him and stated that he had not committed any offence as alleged. He further stated that the plot in question was given by Late Sh. Sita Ram, husband of the complainant Smt. Prakasho Devi to his father Late Sh. Sant Ram (coaccused). He also denied to have committed either the trespass or theft or mischief and stated that he never threatened the complainant. The accused preferred not to lead any evidence in defence and accordingly, the case was listed for final arguments.
7. I heard arguments on both sides and perused the material available on record.
8. To bring home the aforemsaid charge to the accused, the prosecution got examined Smt. Prakasho Devi (PW1) on whose complaint the present case was registered and her son Sh. Ram Sunder (PW2). As per their testimony, both Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) used to reside at D20, Gali No.1, Vijay Chowk, Laxmi Nagar, Delhi where Late Sh. Sita Ram, husband of Smt. Prakasho Devi (PW1) and father of Sh. Ram Sunder (PW2) used to run a milk dairy. In the year 197778, Municipal Corporation of Delhi (MCD) allotted a plot admeasuring 50 meters at Gharoli Dairy Farm in favour of Late Sh. Sita Ram and two plots of the same size were also allotted in favour of Sh. Sant Ram, uncle (Tau) of Sh. Ram Sunder (PW2). Late Sh. Sant Ram had started his milk dairy at the aforesaid plot i.e. B1162 who later on expired in the year 1979.
9. Sh. Ram Sunder (PW2) further deposed that after the death of his father, some how they managed to run the dairy for about one year and had also constructed one room/portion for keeping food for cattles and boundary wall around the plot. Subsequently, as per their testimony, both Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) shifted to their native village. They used to visit their dairy situated at B1162, Gharoli Dairy Farm, Delhi occasionally. During that period, the accused persons started tying their buffaloes in the aforesaid plot after breaking the lock of the plot and on raising objections, assured them that whenever they come back to run their dairy, all the cattles would be removed from the aforesaid plot. Smt. Prakasho Devi (PW1) further stated that when she personally visited her plot at B1162, Gharoli Dairy Farm, Delhi, she saw that the accused persons had demolished the partition wall between both the plots and had made a common plot out of two separate plots. On raising objections in this regard, the ownership of Smt. Prakasho Devi (PW1) was refused by the accused persons who was also asked to go back to her native village claiming that her husband Late Sh. Sita Ram had sold the aforesaid plot in their favour. The matter was reported to the police however, no action was taken in this regard.
10. Smt. Prakasho Devi (PW1) proved her complaint Ex.PW1/A and her statement Ex.PW1/B recorded in this regard. She also deposed that the accused persons had also removed the bank/corporation documents/receipts etc. which were kept in the room in the aforesaid plot alongwith iron gate of the plot and tap. On her cross examination by Ld. APP for the state, Smt. Prakasho Devi (PW1) categorically stated the correct number of dairy to be B1162 which she could not remember earlier being illiterate. She further stated that the accused persons trespassed into the aforesaid dairy, tied their buffaloes, and on asking to vacate the same, she was also threatened.
11. Both Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) were cross examined at length by the counsel for the accused. A perusal of their respective testimony reveals that the deposition with regard to the allotment of plot no. B1162 in favour of Late Sh. Sita Ram by the MCD and trespass by the accused into the aforesaid plot without the consent of Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) wherein one room was also constructed after breaking boundary wall and lock as well as extension of threats to Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) could not be controverted at all. Cross examination of Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2) remained confined to execution of some GPA document in favour of Smt. Shakuntla Devi W/o Sh. Jai Singh, the accused herein by Smt. Prakasho Devi (PW1) and some compromise arrived at between the parties at the time of bail application of the accused persons.
12. The defence taken by the accused is that the ownership documents of the aforesaid plot were executed by Smt. Prakasho Devi (PW1) after obtaining a sum of Rs.1,25,000/ from the accused which Late Sh. Sita Ram had already sold in the year 1978 in favour of the accused Sant Ram (since deceased) for a consideration of Rs.6500/. It is not understandable how the plot in question i.e. B1162 could have been sold by the original allottee Late Sh. Sita Ram when no such right available to him for transfer of the aforesaid plot could be brought on record. The law is settled in this regard that an allottee has no right to sell the allotted property in favour of any other person and therefore, the defence taken by the accused about the initial transfer of the plot i.e. B1162 by the original allottee Late Sh. Sita Ram and subsequent transfer of the same plot by Smt. Prakasho Devi (PW1) in favour of Smt. Shakuntla Devi W/o Sh. Jai Singh, accused herein is not meritorious.
13. The prosecution next got examined Sh. Mukesh (PW3) who stated about accused Sant Ram (since deceased) residing at plot no.1362, GD Colony, Mayur Vihar, PhaseIII, Delhi and running a dairy therefrom. He showed his ignorance about earlier ownership of the aforesaid plot. Sh. Ram Singh (PW4) failed to depose any material thing with regard to the dispute pertaining to plot in question. Sh. Prem Singh (PW5) deposed about his interrogation by the IO of the case with respect to the plot no. B 1162, Gharoli Dairy Farm, Delhi which as per the office record was allotted in favour of one Sita Ram S/o Sh. Bhagwan Singh R/o D/B27, Gali No.1, Laxmi Nagar, Delhi. Sh. Jabbar Singh (PW6) also could not depose any material fact. With regard to the accused taking forcibly possession of the plot belonging to Late Sh. Sita Ram though, he stated that Late Sh. Sita Ram used to run a dairy from his plot whose no. he could not remember. On cross examination by Ld. APP for the state Sh. Jabbar Singh (PW6) stated that the plot no. B1162 belonged to Late Sh. Sita Ram where he was running a dairy but he could not depose about the sale of the aforesaid plot or its forcible occupation by the accused.
14. Lastly, the prosecution got examined Inspector Jaswant Singh (PW7), Investigating Officer of the case who deposed about receiving a complaint (Ex.PW1/A) of Smt. Prakasho Devi (PW1) regarding forcible possession of the plot no. B1162, Gharoli Dairy Farm, Delhi by the accused persons namely Jai Singh and Sant Ram (since deceased). Consequently, he conducted formal inquiry and found the allegations levelled as true. As per his testimony, after registration of FIR, the statement of witnesses were recorded and during such investigation, accused Sant Ram (since deceased) handed over him certain document i.e. allotment document of the plot in question i.e. Plot No. B1162 Ex.PW7/A, receipt of cash Ex.PW7/B and Deed Ex.PW7/C which were taken into possession vide seizure memo Ex.PW7/C1. Thereafter, Inspector Jaswant Singh (PW7) got the same verified from the MCD office of Shahdara South Zone wherein the aforesaid documents Ex.PW7/B & Ex.PW7/C were found to be fake. He also produced report of MCD office in this regard Ex.PW7/D. Inspector Jaswant Singh (PW7) further stated about some compromise between the parties. After preparing charge sheet, he filed the same before the court. He also duly identified accused Jai Singh present in the court.
15. In his cross examination, he stated that some compromise was arrived at between the complainant and the accused persons on the direction of Ld. Sessions Court. He also stated that the plot no. B1162 was transferred by the complainant in the name of Smt. Shakuntla Devi W/o Sh. Jai Singh (accused herein), after registration of FIR on 04.07.2000 vide document Mark X1 (collectively).
16. Taking the entire facts and circumstances into consideration, I am of the considered opinion that in view of the categorical testimony of Smt. Prakasho Devi (PW1) & Sh. Ram Sunder (PW2), there is no doubt that the plot no. B1162, Gharoli Dairy Farm, Delhi was allotted in the name of Sh. Sita Ram (since deceased) husband of Smt. Prakasho Devi (PW1) & father of Sh. Ram Sunder (PW2). After his death, the accused persons namely Sh. Jai Singh & Sh. Sant Ram (since deceased) forcibly occupied the aforesaid plot and after demolishing the partition wall, they converted both the plots into one common plot. The receipt of cash Ex.PW7/B & Deed Ex.PW7/C produced by accused Sant Ram to the IO of the case were found to be fake on verification from the concerned office of MCD. As observed earlier, the plot no. B1162 having been alloted in the name of Sh. Sita Ram (since deceased) was not transferable as claimed by the accused. No other convincing evidence could be led by the accused to sustain his defence. Though, it is claimed that Smt. Prakasho Devi (PW1) executed the GPA document Mark X1 (collectively) handed over to the IO in favour of Smt. Shakuntla Devi W/o Sh. Jai Singh, accused herein, a perusal of the aforesaid document in itself reveals the falsehood on the part of the accused as the property described in all the aforesaid documents is Property no. B1162, land measuring area 50 square meters consisting three shops, one tin shed on the ground floor and one room set on the first floor. The aforesaid description of the property only further strengthens the deposition of Sh. Ram Sunder (PW2) wherein he stated that the accused persons after demolishing the previous construction, constructed some rooms and shops in the plot in question without any authority. Therefore, in my considered opinion, the prosecution succeeding in bringing home the charge u/s 427/448/506(1)/34 IPC against the accused beyond reasonable doubt. In the absence of any positive evidence qua commission of offence punishable u/s 380/34, the accused is hereby acquitted for the said offence.
17. Hence, the accused Sh. Jai Singh is accordingly held guilty qua commission of offence punishable u/s 427/448/506(1)/34 IPC and is convicted for the same.
Announced in the open court on 20.11.2013.
(KULDEEP NARAYAN) ADDL. CHIEF METROPOLITAN MAGISTRATE, EAST/KARKARDOOMA COURTS, DELHI.
IN THE COURT OF SHRI KULDEEP NARAYAN ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, EAST KARKARDOOMA COURTS, DELHI.
FIR No.:130/00 PS: New Ashok Nagar U/s: 427/448/506(1)/34 IPC 26.11.2013 Present: None for the state.
Convict Jai Singh is present alongwith counsel Sh. Swarn Singh. Complainant Smt. Prakasho Devi is also present.
Arguments on the point of sentence heard.
It is submitted that the convict is a sole bread earner of his family which consists of four children, wife and old aged mother. He is running milk dairy business. Further, the convict is not previously involved in any other criminal activity and no other criminal case is pending against the convict. The convict is regularly attending the trial of the present case for about nine years. Therefore, it is prayed that lenient view be taken while awarding sentence by releasing them on probation.
Having heard the submissions and perused the record, it is clear that the convict has been held guilty qua commission of offence punishable u/s 427/448/506(1)/34 IPC for committing mischief by breaking the partition wall of plot no. B1162, Gharoli Dairy Farm, Delhi which was allotted in favour of Late Sh Sita Ram, husband of the complainant. The convict also criminally trespassed therein and on raising objections by the complainant, criminally intimidated her and family members. As stated, the complainant Smt. Prakasho Devi, widow of Late Sh Sita Ram is at present more then 65 year old who is also attending the present case regularly to see that the justice is done to her for the suffering inflicted upon her and her family members by the convict and his family members from the evidence led by the prosecution. It is also clear that the convict grabbed the plot no. B1162 alloted in favour of Late Sh. Sita Ram, husband of the complainant way back in the year 199899 and is in unauthorized occupation thereof in connivance with coaccused Sh. Sant Ram (since deceased) since then and doing business of milk dairy. The complainant was rendered homeless by the convict and was forced to reside at her native place i.e. District Kasganj, U.P. The convict taking advantage of the sudden death of Late Sh. Sita Ram, husband of the complainant trespassed in the aforesaid plot no. B1162 in total disregard of humane consideration and law of land. The injury suffered by the complainant alongwith her family members at the hands of the convict is irreparable. In Maru Ram and Ors. v. Union of India and Ors. 1981 (1) SCC 107, Hon'ble Mr. Justice Krishna Iyer had held that the victimology must find fulfillment not through barbarity but by compulsory recoupment by the wrong doer, of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. Similarly, in Hari Singh v. Sukhbir Singh and Ors. 1988 (4) SCC 551, the Apex court lamented the failure of the courts in awarding compensation to the victims in terms of Section 357 (1) Cr.P.C. and recently in Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC 2454, Hon'ble Supreme Court exhaustively dealt with the aspect of awarding compensation to the victim/injured & held that there exists mandatory duty of the court to apply its mind to the question with regard to awarding or refusal of compensation in every criminal case. It was also observed that the amount of compensation is to be determined by the court depending upon the facts & circumstances of each case, nature of crime, justness of the claim and the capacity of the accused to pay. The present case is the most suitable case falling in the category of cases wherein the complainant deserve to be duly compensated for the criminal acts and deeds on the part of the convict. Therefore, exercising the power u/s 357 (3) Cr.P.C., I decline to take lenient view by releasing the convict on probation and sentence him as under:
(a). For commission of offence punishable U/s 427 IPC, I sentence the convict to undergo Simple Imprisonment for one year and pay compensation amount of Rs.2,00,000/ to the complainant. In default of payment of compensation to the complainant, convict is further sentenced to undergo simple imprisonment for three months
(b). For commission of offence punishable U/s 448 IPC, I sentence the convict to undergo Simple Imprisonment for one year and pay compensation amount of Rs.2,00,000/ to the complainant. In default of payment of compensation to the complainant, convict is further sentenced to undergo simple imprisonment for three months.
(c). For commission of offence punishable U/s 506 (1) IPC, I sentence the convict to undergo Simple Imprisonment for six months and pay compensation amount of Rs.1,00,000/ to the complainant. In default of payment of compensation to the complainant, convict is further sentenced to undergo simple imprisonment for 15 days.
All the sentences will run concurrently.
Compensation not paid.
At this stage, an application u/s 389 (3) Cr.P.C. for suspension of sentence and grant of bail moved on behalf of convict Jai Singh for filing the appeal.
Heard on the application.
In view of the submissions, the convict Jai Singh is admitted to bail subject to furnishing PB in a sum of Rs.50,000/ with one surety in like amount. Bail bonds are furnished and the same are accepted till 27.12.2013.
Copy of the judgment and order on sentence be given free of cost to the convict.
List the case on 27.12.2013.
(KULDEEP NARAYAN) ADDL. CHIEF METROPOLITAN MAGISTRATE, EAST/KARKARDOOMA CORTS DELHI.
26.11.2013