Delhi District Court
State vs Ram Kr Goyal on 28 March, 2025
IN THE COURT OF MS. SWATI SHARMA,
CHIEF JUDICIAL MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CNR No.DLSH020014852013
a Serial No. of the case : FIR No.146/2012, PS
Vivek Vihar[Cr. Case
No.35/2013, 80450/16]
b Date of the commission of : Between 04.05.2012 to
the offence 14.05.2012
c Name of the Complainant : Sh. Kailash
d Name of accused person and : 1. Ram Kumar Goyal
his parentage and residence S/o Late Sh. Kashi Ram
R/o H.No.16, Swaym Sewa
Group Housing Society,
Triveni Apptt., Jhilmil
Colony, Delhi.
2. Ram Gopal @ Chhotu
S/o Sh. Ram Mehar Singh
R/o H.No.248-249, Ground
Floor, Swaym Sewa Group
Housing Society, Triveni
Apptt., Jhilmil Colony, Delhi.
e Offence complained of : 448/34 IPC
f Plea of the accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 03.03.2025
i Order pronounced on : 28.03.2025
BRIEF REASONS FOR THE DECISION
Factual matrix and trial proceedings
FIR No.146/2012 PS Vivek Vihar
State vs. Ram Kumar Goyal etc. Page No.1/ 27
1.Briefly stated the facts of the Prosecution case are that on 04.05.2012 to 14.05.2012 at unknown time at H.No.189 Swayam Sewa Group Housing Society, Triveni Apartments, Jhilmil Colony, Delhi within the jurisdiction of PS Vivek Vihar, accused persons in furtherance of their common intention committed house trespass by entering into the abovesaid house which was used as a human dwelling and which was in possession of complainant Kailash and thus, committed the offence u/s 448/34 IPC. Hence, the present case.
2. Chargesheet in this matter was filed in the court on 06.04.2013 for the offence u/s 448/34 IPC against accused persons whereupon Cognizance was taken and upon appearance of accused persons, copy of chargesheet and relevant documents attached with it were supplied to the accused persons in compliance of section 207 Cr. P.C.
3. Moving further, vide order dated 11.12.2013, charge was duly served upon the accused persons under section 448/34 IPC, which was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
Further, on 19.12.2024, vide their statement recorded u/s 294 Cr.P.C., accused persons admitted the registration of FIR No.146/12 PS Vivek Vihar (Ex.C1). Thus, DO/HC Rajender was dropped from the list of witnesses.
4. Subsequently, prosecution evidence was led and in order to prove its version, prosecution has examined following 11 witnesses:
PW-1 Sh. Kailash
PW-2 Sh. Salikram Nautiyal
FIR No.146/2012 PS Vivek Vihar
State vs. Ram Kumar Goyal etc. Page No.2/ 27
PW-3 Sh. Bhola Nath Shukla
PW-4 Sh. Satish Sharma
PW-5 Sh. Hitesh Kumar
PW-6 Sh. Rajesh Malhotra
PW-7 ASI Mahender Singh
PW-8 ASI Ravi Dutt
PW-9 Insp. Harjinder Singh
PW-10 Sh. Parvesh Khatri
PW-11 Sh. Gopal Dutt
Brief testimonies of Prosecution witnesses are given in the following paragraphs:
4.1. PW1 Sh. Kailash: He is the complainant in the present case. He deposed that on he was living on rent from the year 2011 at Flat No.189, Triveni Apartment, Jhilmil, Delhi-95 and the owner of the flat was Mrs. Archana Malhotra W/o Sh. Rajesh Malhotra and was paying monthly rent of Rs.2,000/- to Archna Malhotra who resided at H.No.84, Gagan Vihar, Delhi. He further deposed that incident had happened on 31.10.2011 and on that day two persons alongwith Ram Kumar Goyal had come to the flat and broken the glasses of the windows and Ram Kumar Goyal had also tried to break the locks of the house. He further deposed that he had given this information to his landlord and he had gave information to the PS vide DD No. 79B.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.3/ 27 He further deposed that on 04.05.2012, he had gone to his village Tanakpur, Uttrakhand and on 14.5.2012, he received telephonic call when he was at Tankapur that somebody had broken the locks of his rented premises and had entered the same. Thereafter, he immediately returned to Delhi on 15.5.2012 and gave the information to Rajesh Malhotra. He further deposed that on 16.05.2012 he alongwith his landlord had given complaint Ex.PW1/A at PS Vivek Vihar and came to know that one lady was residing in his rented premises. He further deposed that his entire belongings were in possession of the lady in rented flat and had gone to the flat to make inquiries and found one lady who stated that she is the tenant of Ram Kumar Goyal. He further deposed that he had gone to the flat immediately when he returned back from Tanakpur, Uttrakhand. The complaint given by Rajesh Malhotra earlier at PS Vivek Vihar is Mark X. Later on inquiries were made by police. He further deposed that on 21.5.2012 Ram Kumar Goyal and Ram Gopal @ Chhotu were arrested vide arrest memo Ex.PW1/B and Ex.PW1/C and their personal search was conducted vide memo Ex.PW1/D and Ex.PW1/E. He further deposed that he was tenant of Archna Malhotra W/o Rajesh Malhotra and no rent agreement was made and she is wife of one Rajesh Malhotra and Rajesh Malhotra is friend of his employer Sanjay Arora. He further deposed that he is residing at Shivam Enclave, PS Vivek Vihar, I used to pay a sum of Rs.2,000/- in cash to Sh. Rajesh Malhotra and he still working with Sanjay Arora. He further deposed that he stayed in the premises from August 2011 to July 2012 and he does not have any documentary proof regarding possession of the flat such as election 1-card. DL etc. He could not tell whether FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.4/ 27 Archana Malhotra was actually the owner of the premises or not. He was only told as such by Sanjay Arora, his y employer is property dealer and runs his business in name of Arora Associates. He further deposed that no tenant verification was got conducted by landlady Archna Malhotra and he was working for him for the last 12 years.
He further deposed that he had shown the place of incident to the IO and site plan was prepared at his instance. He further deposed that disclosure statement of accused Ram Kumar and Ram Gopal @ Chotu vide disclosure statement Ex. PW1/F and PW1/G. He further deposed that the articles which were told by the accused persons belonged to them were seized in his presence by the IO vide seizure memo Ex. PW1/H. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel, he stated that he was working with his employer Sh. Sanjay Arora since last 12 years who is running his property business in the name of Arora Associates. He further stated that his land lady was known to him that is why he never gave him any rent receipt or other documentary proof of his tenancy. He further stated that Rajesh Malhotra (husband of Archna Malhotra) was known to Sanjay Arora that is why the said house was given to him on tenancy. He did not know as to how many houses are there in the Triveni Apartment which belonged to Sanjay Arora. He further stated that he made a complaint directly in the PS Vivek Vihar and he did not make 100 no. call and was residing alone in the said house. He further stated that he had taken his articles in the presence of police after the incident but he failed to remember FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.5/ 27 the said time. He did not know what was the general rate of rent in the area but he took said house for rent of Rs.2,000/- per month. He further stated that he lived in the said house after obtaining his articles in the presence of police and he probably remained in the said house for about 15-30 days. He further stated that his complaint was written by his friend but he failed to remember his name which is Ex. PW1/A and his complaint was read over to him by his friend. He further stated that he alongwith his friend went to PS at the time making complaint. He failed to remember as to in whose name the electricity meter was installed and there was no water meter with respect to water meter in maintenance cost of Rs. 500/- per month used to be paid to the RWA.
During cross examination, the court observed that the witness was deliberately avoiding to answers questions, which were inconvenient to him.
He further stated that the said house was having only one floor but he cannot tell the dimensions of the property but its area is 35 yards. He did not know as to what documents were executed for transferring or renting a property and at the time, he was handed over the possession of property by police, no articles belonging to the accused or any other person were lying therein, however, two women and one accused Ram Gopal were living on that floor. He further stated that entire belongings of Ram Gopal and two women were removed by police at the time when possession was handed over to him. He further stated that this incident took place at about 5 am morning and the month of May and there were 10-15 police officials present at that time. He FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.6/ 27 further stated that IO did not record disclosure statement of accused Ram Kumar and Ram Gopal @ Chotu in his presence and also, he does not have any purchase bill of the said articles. He admitted that he submitted only list of articles to the IO but he did not submit any bill of those articles Ex. PW1/F. He further stated that articles were used and old and he did not have any bills for the same, however, he used the gas cylinder provided by his employer Mr. Sanjay Arora. He further stated that he visited PS once or twice. He admitted that DD no.79B dated 31.10.11 was got registered by his landlord and he was not a witness in that case nor his statement was recorded in that matter. He denied the suggestions that that he alongwith Sanjay Arora and Rajesh Malhotra had broken the lock of the house and window panels. He further stated that the door of the said house was made of Iron and he had seen the accused Ram Kumar Goyal breaking the window panels of his said house. He further stated that he had come to take lunch at that time at his house and he himself used to cook food at his said house for him. He failed to remember on how many papers he signed before the IO. He admitted that there is difference between the ink in which the Ex. PW1/F has been written and the ink in which he had signed on the said documents. He denied the suggestions that no proceeding was done in his presence and entire matter has been made by the IO in collusion with Sanjay Arora, Rajesh Malhotra and him. He admitted that Ram Kumar Goyal was not present at the premises in question, however, failed to remember the exact date on which accused Ram Kumar Goyal was arrested by the police from his house but it was same day it was the same day when co accused was arrested. He further stated that the Ram Kumar Goyal's FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.7/ 27 house was at a distance of 100 feet from the alleged premises in question.
He denied the suggestions that Sanjay Arora inducted him as a tenant in the premises in question or that he was not present in Delhi on 31.10.2011. He further stated that he was present at his aforesaid rented premises on that day and on being asked about the presence of witness PW1 at the aforesaid premises on 31.10.2011, he replied that what could be the evidence of his presence. He further stated that on 31.10.2011 accused Ram Kumar was standing outside and was trying to break open the glass of the window of the said premises. He denied the suggestions that he informed the police immediately after saying the miscreant. He admitted that thereafter his landlord Rajesh Malhotra initiated the legal proceedings against the accused in the police station or that he did not lodge the FIR in the present case against the accused persons. He also admitted that his land lord Rajesh Malhotra has made complain to the police in the present case regarding the incident of 31.10.2011 and also admitted that he had not made complaint to the police regarding the incident 31.10.2011. He further admitted that he had not made any FIR regarding the incident of 31.10.2011. He further stated that when he returned from his village Tanak Pur, Uttrakhand on 15.05.2012 and knocked the door of my aforesaid premises one lady opened the door and she stated that she had been inducted as a tenant by Ram Kumar Goyal and she had been tenant in the said premises till June 2012. He admitted that he was in possession of the suit property till June 2012. He further stated that he had no proof in support of his going to his village FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.8/ 27 on 04.05.2012. He denied the suggestions that he was present at the aforesaid premises on 04.05.2012. He failed to remember the mobile or phone number by which he was informed about the information that someone had broken the door of his tenanted premises. He further stated that he was informed by his friend namely Krishana but he did not know his present address and his father's name. He further stated that he was informed on his mobile number i.e. 9910159805 by his friend Krishna. He failed to remember the exact time when he received the information however it was noon time. He further stated that his village is about 350 km from Delhi and takes about 10-12 hours by bus to go his village. He further stated that he reached in Delhi on 15.05.2012 after received of information on 14.05.2012 by bus. He denied the suggestions that he did not get any information regarding the incident of 14.05.2012 in his village Tanak pur or that thereafter he reached to Delhi on 15.05.2012. He further stated that he did not know the name of the lady who was found in his rented premises. He further stated that he informed to his land lord about the status of that lady. He further stated that on 16.05.2012, he had made a complaint against the accused persons. He denied the suggestions that any of the accused person was found in the possession of the tenanted premises. He could not tell whether accused Ram Kumar Goyal was present inside the tenanted premises. He also denied the suggestions that Ram Kumar Goyal was not present in the tenanted premises. He admitted that he did not get prepare my Election Card, Adhaar Card or any identity proof which may proof that he was present in the tenanted premises. He failed to remember the property address where he was residing being tenant, before inducted in FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.9/ 27 the property in question. He denied the suggestion that he is a tutored witness and had deposed at the instance of Rajesh Malhotra, Sanjay Arora or Archana Malhotra.
He was cross examined by Ld. APP for State regarding the contradiction brought out in the cross examination. He was asked by the Ld. APP for State that he had deposed that he had been tenant till June 2012 and he also deposed that he came to know that accused persons were in possession of tenanted in premises on 15.05.2012 to which he replied that he did not get into the tenanted premises after 15.05.2012 and he continued to be tenant without possession and he did not get into the possession of tenanted premises on 04.05.2012.
He was further cross examined by the Ld. Defence counsel to which he admitted that on 04.05.2012, before leaving his tenanted premises towards his parental house at Tanak Pur, Uttarakhand, he put his lock on the door of the said premises. He further stated that it purports that he was in possession of the suit property on 04.05.2012. He denied the suggestions that he was in possession of the property in question till June 2012. He failed to remember the date, up-till he remained in the tenancy. He further stated that he remained in physical occupation till 04.05.2012 and paid rent till 04.05.2012.
4.2 PW-2 Sh. Salikram Nautiyal: He deposed that in the house no. 189 Triveni Apartment, Jhilmil Colony, Delhi one Mr. Kailash was residing for the last one year from the date when his statement was recorded in this case. He further stated that he knows Mr. Kailash very well as he sometimes visits him also, however, he could not tell as to who started residing at house no.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.10/ 27 189 Triveni Apartment, Jhilmil Colony after Mr. Kailash.
He was cross examined by Ld. APP for the State as he resiled from his earlier statement recorded u/s 161 Cr.P.C.
During his cross examination by Ld. APP for State stated that his statement was recorded by the Police, however, the statement was not read over to him by police. He further stated that he had not stated to the police that another person namely Chotu had started residing at house no. 189 Triveni Apartment, Jhilmil Colony, Delhi. Witness also denied the contents of his statement recorded u/s 161 Cr.P.C Mark A. He denied the suggestions that he was deposing falsely as he had been won over by the accused. He failed to identify the accused Chotu despite pointed out by Ld. APP for State.
4.3. PW-3 Sh. Bhola Nath Shukla: He deposed that he did not know as to who was residing at house no 189 Triveni Apartment. Jhilmil Colony, Delhi in the year 2012 and also not know any person with the name of Kailash as well as Ram Gopal @Chotu.
He was cross examined by Ld. APP for the State as he resiled from his earlier statement recorded u/s 161 Cr.P.C.
During his cross examination by Ld. APP for State stated that he was not inquired by police, however, his signature was obtained only. He further stated that he had not stated to the police that one Kailash was residing at house no. 189 Triveni Apartment, Jhilmil Colony, Delhi and he also not stated to the police that one person namely Ram Kumar @ Chotu started residing after Kailash at house no. 189 Triveni Apartment, Jhilmil Colony, Delhi, who claimed himself as tenant of Ram Kumar Goyal.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.11/ 27 Witness also denied the contents of his statement recorded u/s 161 Cr.P.C Mark B. 4.4. PW-4 Sh. Satish Sharma: He deposed that he had no knowledge about this case and one person namely Kailash was residing in the property but he had no knowledge about the particulars of the said property.
He was cross examined by Ld. APP for the State as he did not disclose complete facts of the case.
During his cross examination by Ld. APP for State stated that he failed to remember since when Kailash was living in the said property. He did not know the person namely Chhotu who told him that he was a tenant of Ram Kumar Goyal. He denied the suggestions that Kailash was living at H.No. 181, Triveni Apartment. Jhilmil Colony. Delhi since last one year or that he had seen Kailash coming out from the said house or that a person namely Chhotu claimed himself as a tenant of Ram Kumar Goyal or that he had seen him before or that he had forcefully occupied the said house.
During his cross examination by Ld. Defence counsel denied the suggestions that the person namely Chhotu was using the said property as he never seen him inside the property.
4.5. PW-5 Sh. Hitesh Kumar: He deposed that in the year 2012, he had run a Tent House in H.No. 189. Triveni Apartment, Jhilmil Colony, Delhi and the owner of the said house was Archana Malhotra. He further stated that one person namely Kailash was living in the said house for 8-9 months and he went to his village for one week and meanwhile one person namely Ram Kumar Goyal and Ram Gopal @ Chhotu broke the lock of FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.12/ 27 the said house and entered into the said house. He further deposed that thereafter, complaint of the same was made and police officials recorded his statement. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel stated that he did not personally Archana Malhotra. He denied the suggestions that Archana Malhotra never shown him the title documents of the said property no. 189. Triveni Apartment, Jhilmil Colony. Delhi. He admitted that the said documents were shown to him by her in the police station. He could not tell about the description and detail of the title documents voluntarily, however, those were mere stamp papers but he could not tell about the value of those stamp papers. He denied the suggestions that Archana Malhotra never shown him the said documents. He denied the suggestions that he was a tutored witness at the instance of complainant and Archana Malhotra. He admitted that he did not lodge/the said complaint about broke upon the locks of the said property. He also admitted that that the accused persons did not commit such act in his presence or within his site. He also admitted that he had received such information from other persons which is hearsay on his part. He further deposed that Kailash verbally informed him to go to his village in May, 2012. He denied the suggestions that Kailash was neither in possession of the said property nor informed him about his visiting to his village. He further deposed that he had no knowledge about the fact as in whose name the electricity meter of the said property. He denied the suggestions that the electricity meter of the said FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.13/ 27 property is in the name of Shivani Goyal. He admitted that he is the brother-in-law (sala) of Sanjay Arora.
4.6. PW-6 Sh. Rajesh Malhotra: He deposed that in the year 2011, he had purchased a flat No.189, Shyam Sewa Group Housing Society. Jhilmil Colony, Delhi in the name of his wife namely Archana Malhotra for a consideration of Rs. 9 lacs from Smt. Sarla Devi. He further deposed that he had obtained the possession of the said flat and electricity meter was already installed and no water connection was in the said flat and he had given the said flat on rent to one person namely Kailash for Rs.2,000/per month. He further deposed that there was no written agreement regarding the same and he used to Visit that flat and on 04.05.2012, the tenant Kailash went to his native place meanwhile accused Ram Kumar Goyal and Ram Gopal @ Chhotu entered in the said flat by breaking its locks and given the possession of the said flat to a lady and when tenant Kailash came from his native place on 15.05.2012, he came to know about this fact. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel admitted that before purchasing the said property in the name of my wife, he had enquired that the status of the flat in question from the concerned department, however, he could not tell the details of the department, where he had enquired about the status of the flat. He further stated that the said flat is constructed on the land which belongs to Department of Govt of NCT of Delhi. He admitted that before or at the time of executing or registering the documents pertains to the said flat, none of the said department FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.14/ 27 was issued any NOC in writing against the application of his his wife. He denied the suggestions that he could not present or produce such kind of documents because of the said reasons. He further stated that before execution of the documents of property in question, his wife had taken the possession of the said flat. He denied the suggestions that sellers of the said flat were not the owner of the said flat from whom his wife purchased the said flat or that the sellers never handed over the possession of the flat to his wife. He further stated that he could produce the previous chain of the property in question, if available to me. He denied the suggestions that Kailash was not a tenant in the said flat in May 2012 or that tenant Kailash was not went to his village on 04.05.2012 or that he did not obtain possession of the said flat or that accused persons did not tress pass the flat in question or that they were falsely implicated in the present case.
4.7. PW-7 ASI Mahender Singh: He deposed that on 21.05.2012, he joined the investigation alongwith SI Harjinder and Ct. Ravi Dutt in case FIR No. 146/12 and reached at the spot i.e. Triveni Apartment, where complainant namely Kailash met him. He further deposed that at the instance of complainant, accused Ram Gopal @ Chhotu and Ram Kumar Goyal were arrested and personally search vide arrest memo, search memos already Exs. PWI/B & Ex.PW1/C and Exs. PW1/D & Ex.PW1/E. He further deposed that IO recorded disclosure statement of accused persons namely Ram Gopal @ Chhotu and Ram Kumar Goyal, vide disclosure statement memos already Ex.PW1/F & Ex.PW1/G and also prepared seizure memo of articles recovered FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.15/ 27 from H.No.189, Triveni Apartment, Jhilmil, Ex.PW1/H. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel denied the suggestion that IO recorded the disclosure at his own and not under dictation of the accused persons. He also denied the suggestions that the said recovery was affected at the instance of the complainant who was present inside the flat on the day of recovery or that complainant was never seen in occupation of the said flat, or that all the alleged recovery was false and recovery memo was fabricated.
4.8. PW-8: ASI Ravi Dutt: He deposed that on 19.05.2012, he received original rukka and copy of FIR from DO of the PS concerned and thereafter he reached at the spot ie. 189, Triveni Apartment, Jhilmil Colony, where IO/ SI Harjinder and accused Ram Kumar Goyal and Ram Gopal met him and handed over copy of FIR and original rukka to IO/ SI Harjinder. He further deposed that thereafter, IO/ SI Harjinder Singh recorded disclosure statement of accused Ram Kumar Goyal and Ram Gopal vide disclosure statement already Ex. PW1/F & PW1/G and also accused Ram Kumar Goyal and Ram Gopal were arrested and personally searched vide arrest memo search memos already Exs. PW1/B, PW1/C, PW1/D & PW1/E. He further deposed that IO also seized articles recovered from the H.No.189, Triveni Apartment and prepared seizure memo Ex.PW1/H, bearing my signature at point C. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel could not tell the name whether any other person was present at FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.16/ 27 the spot when he reached at spot. He further stated that there were household articles lying inside the flat in question. He further could not tell about the contents of disclosure of accused persons. He denied the suggestions that IO had prepared the disclosure statement at his own or without the dictation of accused person.
4.9. PW-9 Inspector Harjinder Singh: He is the IO of the case. He deposed that on 16.05.2012, he had received a DD no. 18A as the same is marked to him by the SHO and he visited the spot of incident ie. 189, Swem Seva Group Housing Society Triveni Apartment, Jhilmil Colony on the same day. He further deposed that the complainant Kailash met him there and told him that he was residing as a tenant at the above stated address and the accused persons had trespass into his premises. He further deposed that he had registered the FIR on 19.05.2012 and the same FIR is Ex. PW9/A and after that, he again went to the spot and after some time Ct. Ravi Dutt came at the spot and handed over him the copy of FIR and rukka. He further deposed that he met the complainant and interrogated him and the site plan was prepared by him Ex. PW9/B and examined the few public persons present there and they told him that the complainant Kailash was residing in the premises as the tenant and when he went to his village for some time, the accused persons had trespassed into his premises.
He further deposed that on 21.05.2012, he alongwith Ct. Mahender Nagar and Ct. Ravi Dutt went to the place of incident and arrested both the accused persons namely Ram Kumar Goyal and Ram Gopal @ Chotu vide arrest memos already Ex. PW1/C FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.17/ 27 & Ex. PW1/B and also conducted their personal search vide personal search memos already Ex: PW1/D & Ex PW1/E. He further deposed that he had also recorded disclosure statement of both the accused persons Ex. PW1/F and Ex PW1/G. He further deposed that the accused persons had planted some of their belongings in the house of the complainant to acquire the possession and he had seized all the said belongings through seizure memo already Ex. PW1/H. He further deposed that he had also sent a notice U/s 91 Cr.P.C dated 08.06.2012 to Sub- Registrar, Geeta Colony, District East so as to clarify about the ownership of the property in question. He further deposed that the Sub-registrar has also replied to the same and the reply is now marked as Mark 'X' and after that, he had filed the charge- sheet before the Court. He correctly identified the accused persons in the court.
During his cross examination by Ld. Defence counsel stated that as per the document inquired by him pertaining to the property in question belongs to one Ms. Archana Malhotra wife of Sh. Rajesh Malhotra. He further stated that he had not obtained any statement of Ms. Archana Malhotra, however, he inquired her orally. He further stated that he knows the term 'title document' in respect of immovable property i.e. registered sale deed, allotment letter, Will, possession letter and Registered GPA. He admitted that there is no sale deed amongst the documents and he obtained from Sub-Registrar-VIII, East District. He further stated that Kailash had not presented any rent agreement to him. He denied the suggestions that he had registered the present case without examination of documents or FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.18/ 27 that Ms. Archana Malhotra was not the owner of the disputed property at the time of occurrence of incident. He further stated that he had not obtained the ID of the public persons whose statements he had recorded. He denied the suggestions that he had arbitrarily recorded the statement of public witness in connivance of Mr. Rajesh Malhotra or that complainant Kailash was not the tenant in the premises in question. He further stated that no tenant verification was conducted in respect of tenancy of complainant Kailash. He denied the suggestions that disclosure of the accused persons was not recorded under their dictation and same was recorded by him at my own or that in connivance of Mr. Rajesh Malhotra, he had got registered a false FIR against the accused persons or that accused persons never committed any trespass inside the premises in question or that they have been falsely implicated.
4.10. PW10 Sh. Parvesh Khatri: He was summoned witness from Office of Sub-Registrar VIII. He brought the summoned record i.e. a certified copy of sale agreement of property number 189 Swayam Seva Society, Jhilmil, Delhi dt. 24.06.2011 registered vide Reg No. 10283 in book no. 1 vol no. 5539 on page 163 to 167 on dt. 27.06.2011, Ex. PW10/A (colly). He had also brought GPA registered vide Reg No. 5385 in book no.4 vol no. 3801 on page 115 to 119 on dt. 24.06.2011, Ex. PW10/B (colly) as well as brought (irrevocable GPA) registered vide Reg No. 7790 in book no.4 vol no. 2580 on page 186 to 193 on dt. 11.12.2007.
During his cross examination by Ld. Defence counsel stated that he had no personal knowledge whether executant of FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.19/ 27 document Ex. PW10/A placed her previous purchased document as stated in the Ex. PW10/A wherein "where the first party purchased the abovesaid property from Shivani Goyal", at the time of execution of PW10/A in our office. He admitted that no previous chain document was placed alongwith the document Ex. PW10/A in our office record.
4.11. PW11 Sh. Gopal Dutt: He was summoned witness from Sub Registrar-IV, Seelampur. He brought the summoned record i.e. original register containing document no. 13367 dt. 26.03.2001 GPA (running into 4 pages) and document no. 5758 dt. 26.03.2001 will, executed by Smt. Harnam Kaur in favour of Anita Manchanda Ex. PW11/A and Ex. PW11/B (OSR). He also broguht record i.e original register containing document no. 19500 dt. 08.05.2003, i.e GPA executed by Anita Manchanda in favour of Neel Kamal Gupta (running into two pages) Ex. PW11/C (OSR) as well as brought the original register containing document no. 12264 dt. 14.07.2005 i.e. irrevocable GPA executed by Sh. Neel Kamal Gupta in favour of Smt. Shivani Goel W/o Sh. Vikas Goel (running into 7 pages) Ex. PW11/D (OSR).
5. After the conclusion of the prosecution evidence, statement of accused persons was recorded u/s 313 Cr.P.C. on 24.01.2025 wherein they claimed to be innocent and denied allegations leveled against them. Accused Ram Kumar Goyal stated that the present property belongs to his daughter in law and he was looking after the property being her father-in-law. Accused Ram Gopal @ Chotu stated that he was living in the flat as a licensee for one month during treatment of his mother and he was living at the instance of co-accused Ram Kumar Goyal. FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.20/ 27 Despite opportunity, accused persons opted to not lead any Defence Evidence. Accordingly, bringing the trial to an end, final arguments were heard from Ld. Counsel for the accused persons as well Ld. APP for the State.
LEGAL PROVISIONS AND REASONS FOR DECISION OF THE CASE
6. Accused persons are charged for the offence punishable under Sec. 448/34 IPC.
Section 441 IPC defines "criminal trespass". It reads as under-
441. Criminal trespass- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Section 442 IPC deals with "house trespass". It reads as under:-
442. House trespass--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, is said to commit "house-trespass".
Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
The above mentioned provisions make it clear that before FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.21/ 27 an accused can be convicted for the offence U/s 448 IPC r.w. Section 442 IPC, the prosecution is required to prove that the accused had entered upon the property, which was in possession of another, with an intent to commit any offence or to intimidate, insult or annoy the person in possession of such property. Similarly, if the accused after lawfully entering into such property has unlawfully remained there with a similar intent to commit any offence or to intimidate, insult or annoy the person in possession shall also be held guilty for the offence of house trespass.
Thus, the first essential pre-condition for holding a person guilty for the offence u/s 448 IPC is that the complainant should be in possession of the property as on the date of commission of the offence. Second pre-requisite is that the accused must have entered the premises of the Complainant with an intent to commit an offence or to insult or annoy the complainant.
7. In the facts of the present case, as there is no eye witness of the said incident, the same needs to be proved through the circumstantial evidence. PW1, the complainant, deposed that he had knowledge of the alleged trespass. However, his testimony failed to establish personal or direct knowledge of the act. In his cross-examination, PW1 admitted that he did not personally witness the alleged trespass but instead relied on information provided by PW6. His entire claim is thus based on second-hand information, which weakens its evidentiary value. Further, PW1 could not produce any written complaint or police report made at the time of the alleged trespass, which weakens the prosecution's case.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.22/ 27
8. The prosecution failed to present any eye witness or supporting documents (such as an electricity bill or possession- related papers) to establish the complainant's possession of the flat before the alleged trespass. The prosecution examined PW2, PW3, PW4 who did not depose about the alleged trespass by the accused persons. PW5 in his chief examination stated that one person namely Ram Kumar Goyal and Ram Gopal broke the lock of the house and entered into the said house. However, in the cross examination he stated that "it is correct that the accused persons did not commit any such act in my presence or within my site. It is correct that I have received such information from other persons which is hearsay on my part". Hence, the statement of PW5 cannot be relied upon being inconsistent.
9. PW6 claimed to have purchased the flat in the name of his wife and rented it out to a tenant, Kailash, in 2011. However, crucial inconsistencies and gaps were found in his testimony. He admitted that the land belongs to the J.J. Department of the Govt. of NCT of Delhi. He conceded that NOC was obtained from any department before purchasing the property. He did not provide a written rent agreement with Kailash, making the claim of tenancy questionable. He came to know about the alleged trespass only when his tenant returned, implying he had no direct knowledge of the entry. No documentary evidence such as Aadhaar card, electricity bill, or any other possession-related document was produced to establish possession.
9. For commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
(1) Entry into or upon property in possession of another.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.23/ 27 (2) If such entry is lawful then unlawfully remaining upon such property.
(3) Such entry or unlawful remaining must be with intent:
(i) to commit of offence or
(ii) to intimidate, insult or annoy the person in possession of the property.
10. Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. It is necessary that the complainant must prove his possession upon the property trespassed. In this regard, in the present case, it is admitted that on the date and at the time of incident the complainant was not present at the spot when the trespass took place. There is no statement of any neighbour or of any other eye witness which was recorded by the investigating officer to ascertain whether the said property was in the possession of the complainant or whether accused trespassed into the said property as alleged by the complainant.
11. Furthermore, actus reus and mensrea are the two essential ingredients of an offence. The law only punishes the guilty mind. The word 'intent' is not to be taken as identical with 'wish' or 'desire'. The intention constitutes the entry 'criminal'. Merely to trespass upon a property is not ordinarily an offence but when the trespass is in order to commit an offence, or when it is to intimidate, insult, or annoy then only it is punished. Thus, the FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.24/ 27 essence of the offence is the intend in committing the trespass. It is essential for the prosecution to prove the intention laid down in section 441 IPC. The intention must always be gathered from the circumstances of the case. The presumption of the necessary intention may be drawn where a person, who has absolutely no interest in land in the possession of others, forcibly takes possession inspite of the protest by the owner. However, even a mere knowledge that accused would annoy the person in possession of property is not sufficient to establish charges under section 448 IPC. It must be shown that the intention of the accused persons was to intimidate, insult or annoy any person in possession. The offence of criminal trespass depends on the intention of the offender and not upon the nature of the act. The proved facts in the present matter establish that the accused entered upon the property without any intention to commit an offence or intimidate or annoy the complainant. Even if we presume that the actus reus part is proved, the mensrea is missing. Neither there is any averment of the prosecution that accused persons were having any such intent to commit an offence or to intimidate or insult or annoy any person, nor any prosecution witness has been able to prove the same. It is also held by Hon'ble Supreme Court in Kanwal Sood Vs. Naval Kishor, AIR 1983 SC 159 that mere unlawful occupation of premises without any intention to commit an offence or to intimidate, insult or annoy any person does not fall under section 441 IPC. Without establishing requisite intent on record, it cannot be said that accused persons are guilty of any offence much less the offence of house trespass.
12. The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
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6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'.
In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide:
Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979). The statement of the witnesses in the court do not inspire confidence and they do not come across as trust worthy or reliable.
Thus, I am of the considered opinion that that the materials and evidence on the record do not bridge the gap between "may be true" and "must be true" so essential for a Court to cross, while finding the guilt of an accused.
FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.26/ 27 Conclusion
13. Therefore, keeping in view the overall facts and circumstances of this case, the prosecution has failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused to be acquitted in the present case. Therefore, accused namely Ram Kumar Goyal and Ram Gopal @ Chhotu are hereby acquitted from the offence punishable under Section 448/34 IPC in the present case.
Announced in the Open Court (Swati Sharma)
on 28.03.2025 Chief Judicial Magistrate,
Shahdara District, Karkardooma
28.03.2025
[This judgment contains 27 signed pages]
[This judgment has been directly typed to dictation.] Digitally signed by Swati Swati Sharma Sharma Date:
2025.03.28 17:18:36 +0530 FIR No.146/2012 PS Vivek Vihar State vs. Ram Kumar Goyal etc. Page No.27/ 27