Delhi District Court
State vs . Pushpa Devi on 31 January, 2015
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE05, NORTH,
ROHINI COURTS,DELHI
State Vs. Pushpa Devi
FIR No. 403/04
PS. Bawana
U/s. 448/34 IPC
Case ID No. 02401R0953462005
JUDGMENT
1) SI No. of the case : 755
2) The date of commission : 25.10.2004
of offence
3) The name of the complainant : Smt. Kamlesh
4) The name & parentage of accused : 1) Gyanender Singh
(Proceedings abated
after his death)
2) Pushpa Devi
W/o Sh. Gyanender
5) Offence complained of : U/s. 448/34 IPC
6) The plea of accused : Pleaded not guilty
FIR No. 403/04, PS. Bawana 1/11
State Vs. Pushpa Devi
7) Final order : Accused Pushpa Devi
Acquitted
8) The date of such order : 31.01.2015
Date of Institution : 19.01.2005
Judgment reserved on : 31.01.2015
Judgment announced on : 31.01.2015
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 25.10.2004 at about 7:00 pm at H.No. E90, Shahbad Dairy, Delhi within the jurisdiction of PS. Bawana, accused persons Gyanender Singh and Pushpa Devi in furtherance of their common intention committed house trespass by entering into the above said house used as human dwelling in possession of complainant Smt. Kamlesh with intention to commit offence and thereby, both the accused committed an offence punishable under section 448/34 IPC.
2. After completion of investigation, charge sheet for offence u/s. 448/34 IPC was prepared and filed in the court against the accused persons upon which cognizance was taken by the Ld. Predecessor Court on 19.01.2005.
FIR No. 403/04, PS. Bawana 2/11
State Vs. Pushpa Devi
3. After complying with the provisions of Sec. 207 Cr. P.C., arguments on Notice were heard and vide order dated 28.01.2008, Notice was framed against the accused persons Gyanender Singh and Pushpa Devi for offence u/s. 448/34 IPC to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution got examined seven witnesses. PW1 Smt. Kamlesh deposed that she did not remember the exact date, month and year but it was almost three years back when she used to live as tenant in the house of accused, however she did not remember his name. She stated that accused had bad eye on her and at the same time, he used to pressurize him to vacate the house. She stated that she started searching some other accommodation but wherever she used to go in search of accommodation, accused followed her and made efforts that she could not get any alternative accommodation. She stated that one day, accused who is present in the court came inside her room and his wife (accused Pushpa Devi), whose name she did not remember, remained outside. She stated that accused throw away her household articles and on the same day at about 10/11:00 AM, accused had come to her room and had given her beating and torn her saree saying that he would make her completely naked in the public. She stated that she went FIR No. 403/04, PS. Bawana 3/11 State Vs. Pushpa Devi to police post and her statement was recorded which is Ex. PW1/A. She stated that accused had threatened to kill her and her children.
During her cross examination, PW1 deposed that she did not remember the date, month and year on which she started living in the house of accused as tenant. She stated that she lived in the tenant house for 23 years. She stated that she did not remember the date, month and year when she vacated the said house. She was confronted with her statement Ex. PW1/A where it was not recorded that in the morning time, she was given beating by the accused and her saree was torn or accused son with 23 associates also came at her house and beaten her. She deposed that she had not dialed the 100 number and called the police at the spot. She admitted that she is not medically examined by the police. She further admitted that he had not taken any medical treatment in a private or govt. hospital. She stated that the police recorded his statement after 56 days of the incident. She stated that she did not remember whether the police took his signatures on blank or printed papers. She admitted that police did not read over the contents of the printed papers on which his signature was taken. She admitted that accused persons were running a kiryana shop. She admitted that the accused persons made the complaint against her and the police also visited at his house prior to FIR No. 403/04, PS. Bawana 4/11 State Vs. Pushpa Devi registration of this case. She admitted that she had given in writing to the accused about vacating the house. She stated that she did not remember the date on which IO recorded her statement. She stated that she had not given any rent agreement or rent receipt to the IO during investigation. She stated that no statement of neigbours as well as other public persons were recorded by IO in her presence at the spot. She stated that police officials took her signatures on blank papers. She denied to the suggestion that she had quarreled with the accused persons as they requested her to vacate the said house for their daughter. She denied to the suggestion that she falsely implicated the accused persons as they requested her to vacate the said house.
5. PW2 HC Raj Pal stated that on 27.10.04, he had gone to E Block, Shahbad Dairy with ASI Ved Pal in connection with investigation of the present case where accused Gyanender was arrested on the identification of complainant Kamlesh vide arrest memo Ex. PW2/A and his personal search memo is Ex. PW2/B. During cross examination, PW2 stated that he did not remember the exact time when the accused was arrested. He denied to the suggestion that he had not accompanied IO to E Block, Shahbad Dairy or that he had put his signatures on arrest memo and personal search memo FIR No. 403/04, PS. Bawana 5/11 State Vs. Pushpa Devi at police station at the instance of IO.
6. PW3 Ct. Mandeep stated that on 31.10.04, he had gone to E Block, Shahbad Dairy with ASI Ved Pal in connection with investigation of the present case where accused Pushpa was arrested vide arrest memo Ex. PW3/A and personally searched vide memo Ex. PW3/B. During cross examination, PW3 stated that he did not remember the exact time when the accused was arrested. He denied to the suggestion that he had not accompanied IO to E Block, Shahbad Dairy or that he had put his signatures on arrest memo and personal search memo at police station at the instance of IO.
7. PW4 Ct. Narender stated that on 26.10.04, ASI Ved Pal handed over handed over him the rukka for registration of the case and after registration of the case, he along with rukka and copy of FIR came back at the spot. He stated that IO recorded his statement.
During cross examination, PW4 denied to the suggestion that he had given statement at the instance of the IO. He denied to the suggestion that he did not take the rukka to PS.
8. PW5 Manish Bansal, Photographer stated that on 26.10.04, he was called by IO for taking the photographs at the spot and he along with him went to the spot where he took two photographs of the spot from different FIR No. 403/04, PS. Bawana 6/11 State Vs. Pushpa Devi angles and the same are Ex. P1 & P2. He stated that he handed over the photographs along with negative to the IO.
During cross examination, PW5 stated that no cash memo/bill was issued by him to the police officials for taking the photographs. He stated that he has no personal knowledge about the dispute or that said property.
9. PW6 HC Dharambir, Duty Officer stated that on 26.10.04 he registered the present FIR Ex. PW6/A and also made endorsement on the rukka which is Ex. PW6/B.
10. PW7 ASI Vedpal stated that on 26.10.04 at about 7:30 PM, one Kamlesh came to the PP and stated that her landlord Gyanender and his wife had removed her goods and all the articles from her rented house on 25.10.04. He stated that he recorded her statement and prepared rukka Ex. PW7/A and the same was handed over to Ct. Narender for getting the FIR registered at PS. Bawana. He stated that in the meantime, he along with the complainant reached at the spot, prepared the site plan at the instance of Kamlesh and the same is Ex. PW7/B. He stated that he got the spot photographed by calling private photographer and the photographs are already Ex. P1 & P2. He stated that on that day, accused persons were not found at the spot. He stated that on the next day i.e. 27.10.04, he along with Ct. Rajpal again visited the spot and from there accused Gyanender FIR No. 403/04, PS. Bawana 7/11 State Vs. Pushpa Devi was arrested by him. He stated that arrest of accused and personal search memo of accused are Ex. PW2/A and PW2/B. He stated that on 31.10.04, the coaccused Pushpa Devi was arrested vide arrest and personal search memos already Ex. PW3/A and Ex. PW3/B. He stated that complainant did not handover any rent receipt or rent agreement in her favour.
During cross examination, PW7 stated that he could not say the present case was falsely lodged upon the accused as the complainant herself did not pay the rent to accused regularly. He stated that no eye witness was found at the spot by him. He admitted that the spot was thickly populated area. He admitted that the articles of complainant were lying in the house itself and not in the street. He denied to the suggestion that he did not carry out proper investigation in this case or accused have been falsely implicate in the present case.
11. During the course of trial, accused Gyanender Singh was reportedly expired and vide order dated 28.11.13, proceeding against the accused Gyanender Singh abated.
12. After prosecution evidence, statement of accused Pushpa Devi u/s. 313 Cr. P.C was recorded in which she has submitted that she is innocent who has been falsely implicated in the present case and she has not FIR No. 403/04, PS. Bawana 8/11 State Vs. Pushpa Devi committed offence as alleged against her. She opted not to lead Defence evidence.
13. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
14. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. In order to prove its case , prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness, if any in the defence of the accused.
15. In order to prove the charges U/s. 448/34 IPC in the present case against the accused Pushpa Devi, the prosecution has to prove that on 25.10.2004 at about 7:00 pm at H.No. E90, Shahbad Dairy, Delhi, accused Pushpa Devi committed house trespass by entering into the above said house used as human dwelling in possession of complainant Smt. Kamlesh with intention to commit offence.
16. PW1 Smt. Kamlesh is the complainant/victim as well as the only eye witness to the prosecution case and her testimony, was very relevant to bring home guilt of the accused in the present case. However, FIR No. 403/04, PS. Bawana 9/11 State Vs. Pushpa Devi the said witness deposed that on the date of incident, present accused (Pushpa Devi) remained outside while accused (Gyanender Singh) came insider her room, threw away her household articles, torn her saree while saying that he would make her naked. From the careful perusal of entire testimony of PW1 Kamlesh, there is no iota of evidence made available against the accused Pushpa Devi to prove that the said accused either committed house trespass into the house/room of the complainant or even connived with accused Gyanender Singh in commission of offence alleged against her. There is no role has been attributed to the accused Pushpa Devi in the entire testimony of PW1 Smt. Kamlesh which would make the said accused liable for incident in question.
17. Moreover, PW1 Kamlesh also stated during her cross examination that police officials took her signatures on blank papers, thereby said witness also cast serious doubt upon the veracity of various documents prepared by the IO. There is no other eye witness to the incident in question. PW7 IO/ASI Ved Pal stated that there was no other eye witness was found at the spot and also admitted during his cross examination that he found the articles of complainant were lying in the house itself and not in the street. There is no cogent evidence available on record to prove that accused Pushpa Devi trespassed into the house in FIR No. 403/04, PS. Bawana 10/11 State Vs. Pushpa Devi possession of complainant or even connived with accused Gyanender Singh (deceased) for committing the offence. In the absence of evidence against her, accused Pushpa Devi is entitled to every benefit of doubt accruing in her favour.
18. It is settled preposition that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
19. In view of the above said discussion, the prosecution has failed to prove its case against the accused for offence u/s 448 IPC. Accordingly, benefit of doubt is given to accused Pushpa Devi and she is acquitted of the said offences U/s. 448 IPC. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
on 31st day of January, 2015 MM/ROHINI COURTS
DELHI, 31.01.2015
FIR No. 403/04, PS. Bawana 11/11
State Vs. Pushpa Devi