Delhi District Court
State vs Surender Singh, Etc. on 15 April, 2013
IN THE COURT OF SH. A.K. AGRAWAL, MM-IV (East)
KARKARDOOMA COURTS, DELHI
FIR No. 496/1999
PS: Shakarpur
Offence Complained of : 448/380/34 IPC
Date of commission of Offence : 19.12.1999 to 26.12.1999
Unique Case I.D. No. : 02402R0047232001
Serial No. : 845/09
STATE Vs SURENDER SINGH, ETC.
(1) Surender Singh
S/o Late Shingar Singh
R/o 584, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi-92.
(2) Sukhdev Singh
s/o Late Shingar Singh
r/o 584, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi-92.
(3) Shingar Singh
s/o Sh. Mohan Singh
r/o 584, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi-92.
(since expired and proceedings abated against him
vide order dated 30.09.2010.)
............Accused Persons
Sh. Satpal Taneja
S/o Sh. Amar Singh,
R/o 443, Jheel Khureja, Delhi
...................Complainant
Date of Institution : 16.05.2001
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 03.04.2013
FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.1 of 11
Date of pronouncement : 15.04.2013
Final order : Acquitted
Brief reasons for the decision of the case: -
1.Briefly stated the story of the prosecution is that the complainant Satpal Taneja was a tenant of accused Shingar Singh (Since deceased) in a shop bearing No.123/2, Guru Ram Dass Nagar, Laxmi Nagar, Delhi, since 1984 and was running a dairy in the said shop by the name of Taneja Dairy. On 19.12.1999, accused Shingar Singh along with his sons accused Surender Singh and Sukhdev Singh broke the wall of the aforesaid shop. Further the accused persons also committed theft of one Allwyn Fridge, Cash box, furniture, weights, utensils, fan and sample machine from the shop. Further on 26.12.1999, the complainant found that his shop as well as three other adjacent shops were completely demolished by the accused persons and even the shutter gate of shops was removed. The other shops belonged to Kamal Kishan Gogia and Ashok Kumar Sahu. Accordingly, an FIR was registered against all the accused persons on the complaint of Satpal Tajena for offences punishable u/s 448/380/34 IPC on 26.12.1999. Accused persons were arrested and released on anticipatory bail however, stolen articles could not be recovered. Upon completion of investigation, the charge sheet was filed against all accused for aforesaid offences on 16.05.2001 and cognizance of offence was taken on the same date.
2. Charge was framed against all accused for offences punishable u/s 448/380/34 IPC on 28.07.2004 wherein, all of them pleaded not guilty and claimed trial.
3. During pendency of trial, accused Shingar Singh expired and proceedings abated against him vide order dated 30.09.2010. Thereafter, the case proceeded against Surender and Sukhdev.
4. In PE, prosecution examined six witnesses in support of its case.
FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.2 of 11
5. PW1 is complainant Satpal Taneja who deposed that he was having a tenanted shop at 123/2, Guru Ram Dass Nagar, Delhi, since year 1994 and the landlord was Shingar Singh. He was running Taneja Dairy in the said shop and was paying rent of Rs. 240/- per month. On 19.12.1999, all the accused persons broke the back portion of wall of the shop and committed theft of one fridge, one cash box, one fan, sample machine, weights and furniture from the shop. The accused persons tried to forcefully occupy the shop and also fought with him (this witness). Thereafter, on 26.12.1999, he lodged the complaint to police and his statement was recorded vide Ex.PW1/A. Two photographs of shops are Mark A & B. The witness also deposed that he had given a complaint to police in the year 1991 which is Ex.PW1/B and another complaint to ACP which is Ex.PW1/C. Witness correctly identified the accused persons.
6. PW2 is ASI Usha Verma, Duty Officer, who registered the present FIR.
7. PW3 is Krishan Kumar Verma, Photographer, who deposed that he took two photographs of shop on request of complainant and handed over the photographs as well as negatives to the complainant.
8. PW4 is HC Amar Pal, who deposed that on 19.12.1999, the complaint of Satpal Taneja was marked to him by DO/PS Shakarpur and then he went to the spot where he found accused Shingar Singh. He saw the shops on the plot No.123, 124, Guru Ram Dass Nagar, in a damaged condition. No public person was willing to give any statement regarding the dispute between the complainant and the accused. The witness further stated that he asked complainant Satpal to show proof/evidence regarding his tenancy of the shop till 21.12.1999 but the complainant could not produce any documentary evidence of his tenancy. His enquiry report is Ex.PW4/A. The witness also deposed that on enquiry from local people, he found that accused Shingar Singh was trying to get possession of the shop. The complaint which was marked to him for inquiry is Ex.PW1/A. He correctly identified accused Shingar Singh.
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9. PW5 is Inspector Suraj Pal Giri who deposed that investigation of this case was marked to him on 12.01.2000, after which he recorded the supplementary statement of complainant Satpal and formally arrested the accused Shingar, Surender and Sukhdev. After completion of investigation, he filed the charge sheet.
10. PW6 is Inspector Gagan Deep, who deposed that on receiving of complaint of Satpal on 26.12.1999, he conducted enquiry and found the facts reported as true. Thereafter, he recorded the statement of complainant and prepared rukka vide Ex.PW6/A. His report is Ex.PW6/B. He prepared site plan at the instance of complainant Satpal which is Ex.PW6/C. He also deposed that he got two photographs of property taken through photographer. Photographs are Mark A & B.
11. Thereafter, PE was closed. Statement of both accused u/s 313 r/w 281 Cr.P.C. was recorded on 09.10.2012 wherein, both accused stated that they were falsely implicated in this case by the complainant. They further stated that complainant Satpal was trying to black-mail them so that he can extract money from their father (accused Shingar, expired and proceedings abated against him) despite the fact that he had already vacated the shop prior to the date of alleged incident. Accused persons wanted to lead defence evidence but despite repeated opportunity, no DE was lead, so DE was closed on 21.03.2013.
12. During final arguments, Ld. APP prayed for conviction of accused stating that in view of evidence of PW1 and supporting evidence of other prosecution witnesses, the case against the accused persons stands proved. On the other hand, Ld. Defence counsel argued that the case against the accused persons was not proved as there was no evidence to show that complainant Satpal Taneja was in possession of aforesaid shop on the date of incident. He argued that the complainant had failed to produce any rent agreement or any other documentary proof to show that he was depositing rent in court during the year 1999. He further argued that there were civil cases pending between FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.4 of 11 the parties against each other for the aforesaid shop, which were disposed off in view of compromise between them as complainant Satpal Taneja had handed over the possession of shop to the accused persons. He further argued that the photographs placed on record are manipulated photographs as there is no proof that they were taken on 26.12.1999. He further argued that there is no evidence of theft against the accused persons as there is no eye witness and none of stolen property has been recovered from the possession of accused persons. Lastly, he alleged that the complainant had falsely implicated the accused persons in this case just in order to extract more money from the accused persons, despite the fact that he had already vacated the shop prior to the date of incident. Accordingly, he prayed for acquittal of accused persons. Thereafter final arguments were closed.
13. In the instant case, the accused has been charged for offences punishable u/s 448/380/34 IPC. The said sections read as under:-
Sec 448 IPC - Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Sec 380 IPC - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
14. In order to prove offence u/s 448 IPC, the prosecution is required to prove the all following points:
14.1 Firstly, the accused committed criminal trespass as defined u/s 441 IPC i.e. the accused entered into or upon property in the possession of FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.5 of 11 complainant with intent to commit an offence or to intimidate, insult or annoy complainant, or having lawfully entered into or upon such property, the accused unlawfully remains there with intent thereby to intimidate, insult or annoy complainant, or with intent to commit an offence.
14.2 Secondly, the criminal trespass was committed in a 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 i.e. house-trespass.
15. Furthermore in order to prove the offence punishable u/s 380 IPC, the prosecution in addition is also required to prove the following facts:-
15.1 The commission of theft as required u/s 378 IPC.
15.2 The place of theft is a building, etc. used as a place of human dwelling.
The question before the Court is whether the prosecution has been able to satisfy the aforesaid legal requirements beyond reasonable doubt or not, in order to prove its case.
16. The Hon'ble Supreme Court observed in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 that :-
"As in England so in India, the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution." I shall proceed with appreciation of prosecution evidence in the light of aforesaid judgement.
17. I have perused the evidence on record and also duly considered the rival contentions of both sides. As far as prosecution witnesses are concerned, FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.6 of 11 PW1 is the complainant who is a material witness, PW2 being duty officer is only a formal witness, PW3 is photographer whose testimony is corroborative in nature, PW4 is police official who conducted enquiry on 19.12.1999 on complaint of Satpal before the registration of present FIR, his testimony is also corroborative in nature, PW5 is second IO, whose testimony is formal in nature as he only formally arrested the accused and filed the charge sheet & PW6 is the first IO of the case. It is self evident that the prosecution is primarily relying on the testimony of PW1 in order to prove its case.
18. Having considered the evidence on record, as far as offence u/s 448 IPC is concerned, I find the prosecution case not proved for the following reasons:-
(A) As per prosecution, complainant PW1 was the tenant of accused Shingar Singh on the disputed shop however, the IO has not filed any document alongwith charge sheet which can show that complainant was tenant on the shop of accused. It is stated that the accused was running a dairy shop by the name of Taneja Dairy but there is no documentary proof to prove this fact.
IO has not filed any rent agreement, rent receipt or any other like document to prove the tenancy of complainant on the disputed property. However, the accused persons have not disputed this fact that the complainant was tenant of their shop, their defence is that the complainant had already vacated the premises before the date of incident. Anyway this is a lacunae on the part of the prosecution because if rent agreement or other documents had been filed, it could have thrown light on the terms and extent of tenancy.
(B) As per complainant, he was depositing rent of the disputed property in the court as per the order of the then Ld. Additional Rent Controller. The defence has admitted this fact that the complainant was depositing the rent in court however, the contention of defence is that prior to the date of offence, the complainant had already vacated the above said shop and stopped depositing rent in court. During his testimony, PW1 had stated that he will produce the documents pertaining to court proceedings which could prove that he was still in possession of tenanted shop and was depositing rent in FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.7 of 11 court, even at the time of this incident. However, when PW1 was recalled for his further cross examination, he failed to produce any documentary proof to show that he had deposited rent in the year 1999. The challans pertaining to deposit of rent produced by PW1 were only of the period till 30.04.1996. It is contended by PW1 that during criminal trespass by the accused persons, they also took away those documents which could prove that he was paying rent in court at the time of alleged offence. This appears to be an after thought on the part of PW1 as he has made no such allegation before the police vide his statement Ex.PW1/A or even at the time of recording of his examination-in-chief in court. PW6 IO/Insp. Gagan Deep Singh also admitted in his cross-examination that he did not take any document from PW1 like rent receipt, electricity payment receipt or any other document which could prove that PW1 was running a dairy in the shop. Moreover, as per PW4, when he went to conduct enquiry on 19.12.1999 i.e. the date of incident, the complainant failed to produce any document in respect of his claim of tenancy on the disputed shop. These facts create doubt regarding possession of complainant on the shop on the date of incident. Even otherwise, PW1 could have produce certified copies of court proceedings of civil court which could have proved that he was depositing rent in the court even in the year 1999 but this has also not been done. As per Illustration (g) appended to Section 114 of the Indian Evidence Act : "The Court may presume that evidence which could be and is not produced would, if produced be, unfavourable to the person who holds it." So, an adverse inference, therefore, could be drawn against prosecution for non-production of documentary proof of tenancy. In these circumstances, it is difficult to believe the contention of prosecution that PW1 was in possession of the aforesaid shop and was depositing rent in the court, at the time of incident.
(C) The prosecution has also relied on two photographs which are Mark A & B which show that there is one Taneja Dairy being run in the said shop. It is stated by PW3 that photographs were taken on 26.12.1999 i.e., the date on which the shop was demolished after the wall of shop was broken and many articles were stolen from the shop on 19.12.1999. PW3 has admitted that FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.8 of 11 there is no proof to show that photographs were taken on 26.12.1999 itself and not prior to that. There are also no negatives of the photographs placed on record. PW3 has stated that he took the photographs on the request of PW1. But as per IO PW6, the photographs were taken on his direction. This is also a material contradiction. Even otherwise, one material fact which totally demolishes the contention of prosecution that the photograph was taken on 26.12.1999 is that as per PW1, theft was also committed by the accused persons after trespassing the shop in which many articles including one fridge, cash box were stolen but the photographs on record show that the fridge as well as cash box are very much lying in the shop. Even the wall of shop appears to be completely intact. This shows that the photographs are taken either prior to date of incident or that on the date of incident, no theft of article has taken place. Either way it affects credibility of the prosecution case.
(D) It is also pertinent to mention that there is no independent public witness of incident. In fact, as per PW4 who went to conduct enquiry on 19.12.1999, public persons in the locality refused to join investigation stating that they did not want to come between the complainant and the accused.
19. In State of Goa v. Pedro Lopes 1996 CRI.L.J. 256, the Hon'ble High Court while dismissing the appeal against the acquittal of the accused observed that :
"Therefore, it is needless to say that in order to sustain a prosecution, it should be established before the Court that the complainant is entitled to have an unquestionable possession of the property in exclusion of the entire cleared at the time of trespass alleged. Admittedly, in this case, such a possession cannot be presumed or established."
FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.9 of 11
20. In view of above findings, I am of the considered opinion that prosecution could not prove that the complainant was in possession of aforesaid shop at the time of incident. Further there is no proof which can show that any incident of breaking the wall took place on the date of incident and further the breaking of wall was done by the accused persons themselves as there is no eye witness of this fact. So, the offence u/s 448 IPC is not proved against the accused persons.
21. As far as the offence punishable u/s 380 IPC is concerned, besides the above facts, the prosecution case suffers from further anomalies which are as under:-
(A) There is no eye witness of theft as the allegations are that the complainant had found articles of his shop missing on the date of incident. He did not see as to who committed theft.
(B) As observed above, the photographs marked A & B show that the articles which are allegedly stolen from the shop of complainant are very much lying in the shop. This means either the photographs are unreliable or the fact that the complainant had falsely deposed that these articles were stolen from his shop, on the date of incident.
(C) Even otherwise, the stolen articles have not been recovered from the possession of accused persons which can show that the accused persons themselves committed the theft. Infact the articles remained unrecovered till the end.
(D) Moreover, as observed above, the prosecution had failed to prove that PW1 was in possession of shop at the date and time of incident, so when PW1 was not in possession of shop itself, there was no question of his articles lying in the said shop and accordingly of any theft of articles having taken place in the shop.
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22. So even the offence punishable u/s 380 IPC is not proved against the accused persons. With these observations and findings, I am of the opinion that the prosecution has totally failed to prove its case against the accused persons. Accordingly, both accused Surender Singh & Sukhdev Singh are hereby acquitted from offences punishable u/s 448/380/34 IPC.
Ordered accordingly.
Announced in open court on Dated: 15.04.2013 (A. K. AGRAWAL) MM(East)/KKD/15.04.2013 FIR No.496/1999 PS Shakarpur State vs.Surender Singh Page no.11 of 11