Delhi District Court
State vs Virender Kumar Etc. on 9 April, 2007
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA M.M. KKD
COURTS DELHI:-
FIR No. 69/90
U/S. 448/34 IPC
P.S. Gokal Puri, Delhi.
State Vs Virender Kumar Etc.
JUDGMENT
a. Sl. No. of the case : 125/03 b. Date of commission of offence : 25.03.90 c. Name of the complainant : Sh. Gaje Singh
d. Name of the accused, his 1. Virender Kumar S/o Sh. Tilak Ram R/o Village-Vineda, PS-Kairena, District-Mujaffar Nagar, U.P.
2. Satram S/o Sh. Bhagwat Prasad R/o Village-Abdul Pur, PS-Khekda, Meerut.
3. Braj Nath S/o Sh. Babu Lal R/o Village-Noras Pur, PS-Loni, U.P. e. Plea of the accused : Pleaded not guilty.
f. Offence complained or proved of : 448/34 IPC g. Final order : Convicted.
h. Date of such order : 09.04.07.
I. Brief reasons for the decision of the case.
The above named accused persons were charge sheeted by SHO P.S. Gokal Puri, Delhi with the allegations that on 25.03.90, a complaint was made by one Sh. Gaje Singh that on 25.1.90, he purchased a plot of measuring 200 Square yards, out of Khasra number 49/3, Abadi Shiv Vihar, Village- Karawal Nagar from one Deshraj and one room was constructed in the aforesaid plot and he is residing in aforesaid plot from the very same day when he got possession of the plot. Today, at about 5 pm, in the evening some persons, whose name, now, on interrogation came to known as 1.Virender Kumar Verma S/o Sh. Tilak Ram 2.
1Pratap Singh S/o Sh. Chand Ram, 3. Sat Ram S/o Sh. Bhagwat Ram and 4. Braj Nath S/o Sh. Babu Lal, came to his plot while creating 'Ho Halla' and after entering in his room, they thrown out the articles lying in the room and started demolishing the North side boundary wall of his plot and he was going to PS on account of their fear, in the meantime police came, Virender Kumar Verma and his above said companion tried to dispossess him, although an inquiry in this respect is already pending with police and he was residing peacefully in the aforesaid plot. On the basis of this complaint present case FIR was registered. The investigation of the case was conducted and during the investigation, site plan was prepared, statements of witnesses were recorded, accused were arrested and after completing the other formal investigation, the challan was presented in the court for trial.
On appearance the copies of challan were supplied to the accused and since prima facie a case U/s. 448/34 IPC was made out against all accused, accordingly, charge was framed to which they pleaded not guilty and claimed trial. During proceeding accused Pratap Singh expired and proceeding against him was abated vide order dated 14.8.01.
Statement of accused persons were recorded U/s.
313 Cr.P.C, wherein they claimed themselves innocent and preferred to lead defence evidence, but despite several opportunities no defence witness was examined by them and lastly on their request, defence evidence was closed vide order dated 24.11.06.
To substantiate the charge prosecution has examined seven witnesses. PW1 Brahm singh, Photographer, who took the photographs of the spot,. PW2 is Deshraj, the previous owner of the plot in question, PW3 is Ct. Amar Pal, who got the case FIR registered, PW4 HC Ganpat Singh, MHCM, with whom the case property was deposited, PW5 Gaje Singh i.e. complainant, who proved complaint as Ex. PW5/A, PW6 SI Kailash, who alongwith IO reached on spot and PW7 Inspector Netra Pal Singh, IO, who narrated the steps taken during the 2 investigation and proved various memos prepared by him.
I have heard Ld. APP for the State and Ld. Defence counsel and perused the record. Ld. Counsel for the accused argued that accused persons have been falsely implicated in the present case and complainant has not proved his ownership in respect of property in question.
In nut shell the case of prosecution is that complainant purchased a plot of measuring 200 square yards out of Khasra no. 49/3 Abadi Shiv Vihar, Village-Karawal Nagar from one Deshraj and one room and boundary wall was already constructed in the aforesaid plot and he was residing in aforesaid plot from the very same day when he got possession of the plot. On 25.3.90, all accused in furtherance of their common intention trespassed in the aforesaid plot of the complainant and thrown the articles belonging to complainant outside and tried to demolish the northern side boundary wall of the plot in question.
PW5, complainant Gaje singh has deposed that on 25.1.90, he purchased a plot from one Desraj and was residing in the said plot and all the accused came to his plot and entered in the room and destroyed the articles and got down the boundary wall. PW5 proved his complaint as Ex. PW5/A and identified the accused. PW5 further deposed that some photographs which are already Ex. P-1 to P-3 were also taken and he handed over the copy of GPA of plot in question to the IO which is Ex. PW5/B. The testimony of complainant remained unrebutted despite opportunity given to accused persons, although the witness was produced by the investigation officer with great difficulty as apparent from order dated 20.8.02 of Ld. predecessor, but Ld. defence counsel did not appear despite the fact that witness was available till 3 pm on that day. The testimony of complainant appears to be reliable and trustworthy and there is no reason to disbelieve the same.
PW1 Brahm Singh has also deposed that photographs Ex. P-1 to P-3 of the property in question, were taken by him. In his 3 cross examination, he confirmed that only one constable came to him at about 7 pm and he took the photographs of the walls only.
PW2 Deshraj, the previous owner has also deposed that he purchased the aforesaid plot in the year 1984/85 and later on he resold the plot to Mangal Singh, but he was not paid any amount of consideration. PW3 Ct. Amar Pal deposed that pursuant to DD No. 13 A when he reached alongwith SI Netra Pal on spot all the accused were present and articles of the room were lying scattered and in his presence the IO recorded the statement of complainant and he got the case FIR registered. PW7 Inspector Netra Pal Singh has also deposed that when he reached at the plot of complainant, all accused were found having hockey sticks in their hands, which were taken into police possession vide memo Ex. PW5/C and he also seized the copy of GPA in favour of complainant vide memo Ex. PW7/A. The testimony of PW7 also remained unrebutted despite opportunities.
The essential ingredients of house trespass as defined U/s. 442 IPC reads as under :-
"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 us said to commit "house-trespass".
Explanation.-- The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
Thus the possession of complainant and the introduction of any part of criminal trespasser's body is sufficient to constitute the offence of criminal trespass. There is no need to prove the ownership of the property, where the offence is committed and only possession of complainant is required as defined in the definition of criminal trespass U/s. 441 IPC. PW5 complainant and other prosecution witnesses have specifically deposed that complainant was in 4 possession of the property in question and all the accused in furtherance of their common intention entered into the room constructed on the aforesaid plot and thrown out the belongings of the complainant outside with intent to dispossess him, although an inquiry was already pending with the police.
After going through the testimony of complainant and other prosecution witnesses, I am of the considered opinion that it has been duly proved that on 25.03.90, all accused in furtherance of their common intention committed house trespass into the plot in possession of complainant. Therefore, I held accused Virender Kumar, Sat Ram and Braj Nath guilty U/s. 448/34 IPC and accordingly, convict them therein under.
Announced in the Open Court Today i.e. 09.04.07. (Sanjeev Kumar Malhotra) Metropolitan Magistrate Karkardooma Courts, Delhi.
ORDER ON SENTENCE Present :-Ld. APP for state.
Convicts Virender Kumar, Sat Ram and Braj Nath are present on bail with Sh. S.S. Tanwar, Advocate.
I have given my thoughtful consideration to the submissions of Ld. Counsel for the convict in respect of question regarding quantum of sentence to be awarded to the convict.
It is submitted by the Ld. APP for the State that as the case of prosecution has been proved against the convicts U/s. 448/34 IPC, hence, the convicts are not entitled for any leniency rather they deserve for maximum punishment.
On the other hand, Ld. Counsel for convict 5 submitted that convicts are first offenders and of young age about 50 to 60 years old and, if harsh punishment is awarded to the convicts, their entire life shall be ruined .
Sentencing is a difficult process. While awarding sentence, a balance is to be maintained between larger interest of society as well as the interest of the individual. In this case, although, the offence committed by the convicts is not minor one but keeping in view of the entire facts and circumstances and antecedents of the convicts as well as the submissions of the counsel for the convicts, convicts are released on probation for a period of two years on furnishing probation bond of Rs. 15,000/- with one surety of like amount each with the condition that convicts shall not indulge in such type of activities and to be of good behaviour, in default convicts shall be sentenced then and there. Time is prayed by convicts. Let probation bond be furnished within ten days from today. File be consigned to Record Room.
Announced in the open court.
Dated 09.04. 2007 (SANJEEV KUMAR MALHOTRA) Metropolitan Magistrate Karkardooma Courts, Delhi.
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