Delhi District Court
State vs . Mahender Singh Etc. on 16 October, 2007
1
IN THE COURT OF SHRI POORAN CHAND
METROPOLITAN MAGISTRATE:
ROHINI COURTS:DELHI
FIR No.262/88
P.S. Vikas Puri
U/s. 448/379/506/34 IPC
State vs. Mahender Singh etc.
Sl. no of the case : 323/2
Date of commission of : 21-11-88
offence
Date of institution : 20.9.89
Name of Complainant : Kuljeet Kaur W/o Partap Singh R/o B-
38 Gali no.10 Mahavir Nagar New
Delhi
Name, parentage and : 1. Mahender Singh S/o Chandu Lal
address of the accused R/o C-24 Anand Vihar Uttam Nagar
Delhi
2. Lakh Pat Singh S/o -do- R/o -do-
3. Harsharan Singh S/o -do- R/o -do-
4. Udam Singh S/o -do- R/o -do-
5. Pawan Kumar S/o -do- R/o -do-
6. Braham Singh S/o -do- R/o -do-
Offence complaint of : U/s 448/379/506/34 IPC
Plea of accused : Pleaded not guilty.
Final order : Convicted
Date of reserve of order : 11.10.07
Date of order : 11.10.07
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION
1. The accused persons Mahender Singh, Lakh Pat, Harsharan Singh, Udam Singh, Pawan Kumar and Braham Singh were charged on the allegations that on 21.11.1988 at about 5 PM at Plot no.C-23 Anand Vihar Uttam Nagar Delhi all the accused persons 2 in furtherance of their common intention committed house tress pass by entering the plot no. C-23 Anand Vihar Uttam Nagar belonging to Baljit Kaur which was used as a plot for the custody of the property by her and thereby all the accused persons committed an offence punishable u/s 448/34 IPC within my cognizance. Secondly on the same date time and place all the accused persons in furtherance of their common intention removed the boundary wall and all building material including the bricks from plot no.23 belonging to complainant and thereby all the accused persons committed an offence punishable u/s 379/34 IPC within my cognizance. Thirdly on the same date time and place all the accused persons in furtherance of their common intention caused criminal intimidation tot he complainant Baljit Kaur and Hans Raj by threatening them with death and thereby all the accused persons committed an offence punishable u/s 506(II)/34 IPC and within my cognizance.
2. In order to prove its case prosecution has PW1 ASI Dara Singh , who is a duty officer and he has proved the copy of FIR as ex.PW1/A.
3. PW2 HC Kulbir Singh who has stated that on 21.11.88 he was posted at PS Vikas Puri and was on patrolling duty along with ASI Hem Chander and while patrolling they reached near plot no.C- 3 323 Anand Vihar Uttam Nagar Delhi one lady met them and she got recorded her statement. The IO prepared rukka and got the case registered through him and he returned at the spot and handed over the documents to the IO. All the accused persons were arrested by the IO and their personal search were prepared which are ex.PW2/A to D. These accused persons made disclosure statement ex.PW2/E and they also got recovered the bricks from the back side of plot no. C-24 and these were seized vide memo ex.PW2/F. All the accused persons were identified correctly by the witness. Further examination of this witness was deferred for want of case property but this witness was never called in the witness box by the prosecution therefore his examination in chief cannot be read in evidence.
4. PW3 Chaman Lal who appeared in the court and stated in the witness box due to his old age and sickness he was not in a position to tell anything before this court and this witness was got declared hostile by the Ld. APP as his statement was not on record. He was discharged.
5. PW4 Ishwer Dass who has stated that in the year 1988 plot no.C-23 measuring about 180 square yards was in his name and in the name of Chaman Lal . In the year 1988 they sold 90 square yards of this plot to one Sh.Hans Raj and other 90 square yards to Preet 4 Kaur. They gave all the documents to them and also handed over the possession of the plot tot he parties. After one and half month of their selling plot to Preet Kaur accused present in the court today in all six had a quarrel with Kuljeet Kaur at the above stated plot. This witness was present there. They were doing demolition on the plot and were lifting the bricks. After that he did not remember what happened. This witness was cross examined by the Ld. APP and he was declared hostile. During cross examination by State Counsel this witness has admitted the accused persons had broken the locks on the entrance gate of the plot. This witness has also admitted that when he and Kuljeet Kaur tried to enter the plot they threatened to kill them if they tried to enter at this plot. He has also admitted that accused persons were illegally tried to occupying the plot to take possession and has stated that all these things he has stated now due to lapse of time as case is very old and pertaining to the year 1988. This witness was not cross examined by the accused persons.
6. PW5 SI S.D. Mishra who has stated that on 13.2.89 he was posted in vigilance branch . On that day investigation of this case was handed over to him. On 23.3.89 he formally arrested accused Pawan and Braham Dutt who are present in the court and completed his investigation prepared the challan and filed in the court. This 5 witness was not cross examined by the accused persons despite opportunity.
7. PW6 SI Hem Chand he has stated that on that day he along with Ct. Kulbir Singh were present in the area on patrolling duty one lady met them and she got her statement recorded which is Ex.PW6/A. He made endorsement which is ex.PW6/B and prepared rukka and gave the same to Ct. Kulbir for registration of case and he got the case registered and came at the spot and handed over the copy of FIR to the IO. IO got the photographs of the spot taken by the photographer. IO inspected the site and prepared site plan which is ex.PW6/C . He recorded the statement of witnesses. He arrested the accused persons vide memo ex.PW2/A to 2/D. He conducted personal search of the accused vide memo ex.PW2/E. He seized the bricks vide memo ex.PW2/F at the spot. On 2.2.89 he was transferred. He correctly identified all the accused persons.
8. PW7 Sh. Hans Raj he has stated that in the year 1988 he purchased a plot C-23 Anand Vihar Uttam Nagar Delhi measuring about 90 square yards. He constructed a boundary wall . He also put the gate on the plot. Subsequent to him the adjacent plot was bought by one Kuljeet Kaur . She also constructed the boundary wall on the plot. On 21.11.88 he heard that quarrel had taken place between 6 Kuljeet Kaur and accused in the present case . This witness has pointed out towards Udam Singh and Hari Sharan. He did not know the accused persons earlier. He came to know about the quarrel as he resided in the same gali. When he reached the spot there was no quarrel taken place. He saw that the wall separating his plot from the plot of Kuljeet kaur was broken . He had not seen any person breaking the wall. He did not make inquiry regarding the person who demolished the wall. Kuljeet Kaur might have done inquiry in this regard.
9. After that no PW was examined in this case by the prosecution. Hence Prosecution Evidence was closed. All the accused persons were examined u/s 313 Cr.PC read with section 281 Cr.PC. Accused Braham Singh stated that he has been falsely implicated int his case on next day he has gone to meet his brother and was apprehended by the police. Accused Pawan has also stated that he was not present at the spot and has stated that he was called by his sister in law on telephone and has been implicated in this case. Accused Harsaran Singh stated that though he was present at the spot at the time and date mentioned but no incident as alleged was taken place. Accused Udam Singh has stated that he was not present at the spot in fact he was arrested from his house by the 7 police. He claims to be innocent. Accused Mahinder Singh has also stated that he was not present at the spot as alleged in fact he was in his office when he was arrested in this case. Accused Lakh Pat has stated that at the time of incident he was not present and he was called by his brother Udam Singh at the spot. All the accused did not lead evidence in their defence.
10. I have heard arguments from both the parties and have gone through the evidence lead by prosecution.
11. It is settled proposition of criminal law that prosecution has to prove its case on the judicial file beyond reasonable doubts and such doubts in the prosecution story entitle the accused to acquittal. In a case reported as Rama Kant Rai V/s. Madan Rai 2003 (8) Scale 243 it has been ruled that a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and 8 substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously, be expressed in terms of units to be mathematically enumerated as to how may of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analyze, rest on a rbust common sense and, ultimately, on the trained intuition of judge.
12. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed ligitimization of trivailities would make a mockery of administration of criminal justice. In Sucha Singh and Anr V/s State of Punjab J.T. 20- 3 (6) S.C. 248 it has been ruled that: exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and St. Vs. Sita Ram.sxw thereby destroy social defence, Justice cannot be made sterile on the plea that it is better to let hundred guilt escape than punish an innocent. Letting guilty escape is 9 not doing justice according to law. (See: Gurbachan Singh V/s. Satal Singh and oth res J.T. 1989 (4) S.C. 38; A.I.R. 1990 S.C. 209. Prosecution is not required to meet any and every hypothesis put forwarded by the accused. (See: State of U.P. V/s Ashok Kumar Srivastava J.T.1992 (1) S.C. 340; AIR 1992 S.C. 840. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It is must grow of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether if the meticulous hypersensitivity for eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See: Inder Singh and Anr. Vs. State of (Delhi Admn.) AIR 1978 S.C. 1091). Vague hunches cannot take place of judicial evaluation. " A judge does not preside over a criminal trial, merely see that no innocent man ins punished. Judge also presides to see that a guilty man does not escape. Both are his public duties." Per Viscount Simon in Stirland V/s. Director of Public Prosecution, 1994 AC (P.C.) 315 quoted in State of U.P. V/s. Anil Singh JT. 1988 (3) SC 491; A.I. R 1988 S.C. 1998 . Doubts would be called reasonable if they are free from am 10 zest for abstract speculation. Law cannot afford any favourite other than truth".
13. In Visveswarn V/S. State 2003 Rajdhani Law Reporter 350 (SC) Hon'ble Supreme Court of India has ruled that in a criminal trial duty of the courts is not to let off criminals on petty discrepancies of minor contradictions. They must show responsibility. Ground realities must be appreciated. Accused be not allowed the benefit of defective investigation. Prosecution lapses cannot be allowed to become escape route of criminals. If there is sufficient proof of guilt by border probability, court must ignore technical objections.
14. Now I come to the facts of the present case . Accused persons have been charged for the offence u/s 448 IPC and while committing criminal tress pass they have also stolen the bricks and in doing the above said offence they have threatened the complainant to kill therefore they have also been charged for the offence punishable u/s 506 (II) IPC. Accused persons have denied having committed the offence criminal tress pass as alleged by PW4 and 7. But PW4 has categorically stated that at the time of incident he was present at the spot . He has also stated that when he along with Kuljeet Kaur tried to enter into the plot accused persons threatened them to kill if they ever tried to enter into this plot . This evidence of this witness shows that 11 he was present at the spot and he has identified all the accused persons . This witness was not cross examined by the accused persons despite opportunity given to them for the same. Accused persons have not shown any enmity with this witness. No plausible reasons have been assigned by the accused persons why this witness telling lie. Therefore I am of the considered view that testimony of this witness is trust worthy and is a reliable witness.
15. So far as PW7 Hans Raj is concerned he has admitted that Smt. Kuljeet Kaur has also constructed wall over the plot and has also confirmed the fact that wall separated his plot from the plot of Kuljeet Kaur was broken. This portion of statement of this witness shows that the property in question was in possession of Kuljeet Kaur and he has also corroborated the testimony of PW4 Ishwer Dass that accused persons have committed house tress pass in the premises in question. No plausible reasons has also been shown by the accused persons why PW7 is deposing falsely. No previous enmity has been shown with this witness. Therefore , I am of the considered view that testimony of this witness is also reliable and is trust worthy .
16. PW4 has categorically stated that accused persons have taken the bricks from the premises in question and they have threatened Kuljeet Kaur and him to kill them if they ever tried to enter 12 into this plot. This witness has also stated that accused persons illegally tried to occupy a plot and take possession of this plot therefore, prosecution has also proved the charge u/s 379/506(II)/34 IPC.
17. In view of above discussions I am of the view that prosecution has proved its case beyond reasonable doubt against all the accused persons u/s 448/379/506(II)/34 IPC. Hence all the accused persons are convicted for the offence u/s 448/379/506(II)/34 IPC.
(Announced in open court on 11.10.07) (POORAN CHAND) METROPOLITAN MAGISTRATE NEW DELHI.
13IN THE COURT OF SHRI POORAN CHAND METROPOLITAN MAGISTRATE:
ROHINI COURTS:DELHI FIR No.262/88 P.S. Vikas Puri U/s. 448/379/506/34 IPC State vs. Mahender Singh etc. ORDER ON POINT OF SENTENCE 1 I have heard arguments on point of sentence from both sides.
2. It is argued on behalf of all the convicts that all the convicts are facing trial 1988 regularly . They are poor persons. No previous conviction is enforced against them. All the convicts are only bread earner in their family. They are first offender. It is prayed that a lenient view be taken against them.
3. On the other hand, Ld. APP for the State has argued that keeping in view the offence committed by all the convicts maximum punishment be awarded as they do not entitle for leniency in this case as offence committed by them.
4. Heard.
5. It is correct that accused persons are facing trial since 1988.
The present case was registered on the complaint of Complainant Smt. Kuljeet Kaur in the year 1988 and during the pendency of trial of this case complainant Kuljeet Kaur was expired on 8.2.01 . All the 14 convicts have tress passed on the property of complainant named above and all the convicts have been charged for the offence which proved against them. The basic principle of criminal law is that justice should not only be done but it seems to have been done therefore in the light of above saying . Though is correct that accused persons are facing trial since 1988 but at the same time it is also correct that complainant was also facing trial for seeking justice since 1988. Not only this she expired during the pendency of this case in the year 2001. Therefore, it will serve interest of justice in my view if all the convicts are sentenced to imprisonment for two years RI for all the offences and fine of Rs.8000/- each for all the offences and in default of payment of fine they shall further undergo SI for three months. Hence I order accordingly. Copy of this order be given to all the convicts free of costs.
(Announced in open court on 16.10.2007) (POORAN CHAND) METROPOLITAN MAGISTRATE DELHI.
15FIR NO. 262/88 16.10.07 Present: Ld. APP for the State.
All the six convicts on bail.
Arguments heard on the point of sentence.
Vide my separate order on the point of sentence all the six convicts are sentenced to imprisonment for two years RI for all the offences and fine of Rs.8000/- each for all the offences and in default of payment of fine they shall further undergo SI for three months. Hence I order accordingly. Copy of this order be given to all the convicts free of costs. Fine deposited by all the convicts vide receipt no. 0010548 to 0010553.
At this stage all the six convicts moved an application for bail as they intended to file appear against my order. Heard. All the convicts are admitted to bail on furnishing BB in the sum of Rs.10,000/- with one surety in the like amount. BB furnished and accepted till 16.11.07.
M M DELHI