Delhi District Court
State vs . Harbaksh Reyar on 30 November, 2016
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN: METROPOLITAN
MAGISTRATE10 (SOUTHEAST),
SAKET COURTS:NEW DELHI
State Vs. Harbaksh Reyar
FIR No. 392/98
U/s 448/380/34 IPC
P.S. G.K.I
J U D G M E N T
CRC No. : 89574/16
Date of Institution : 08.02.2002
Date on which case reserved for
judgment : 28.11.2016
Date of judgment : 30.11.2016
Name of the complainant : Anil Sharma
s/o Late Sh. K.B. Sharma
r/o H. No.D182, 2nd Floor,
Lajpat NagarI, New Delhi
Date of the commission of offence : 24/25.09.1998
Name of accused : 1. Harbaksh Reyar
w/o Lt. S.S. Reyar
r/o House No. P10/6,
DLF PhaseII, Gurgaon,
Haryana (proceedings
abated due to mental
FIR No. 392/98
P.S. G.K.I Page No.1 of 25
illness/insanity)
2. Harpreet Malik
w/o Sh. Mahesh Malik
r/o House No. P10/6,
DLF PhaseII, Gurgaon,
Haryana
Offence complained of : U/s 448/380/34 IPC
Offence charged of : U/s 448/380/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 24/25.09.1998
Date on which case reserved
for judgment : 28.11.2016
Date of judgment : 30.11.2016
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint wherein the complainant has stated that he was residing as a tenant at house No.M43, Second Floor, Annexe Building. On 21.09.1998, accused No.1 who was the landlord and his daughter namely Harpreet Malik had falsely implicated him in a false case regarding molestation and had also threatened him that the complainant shall FIR No. 392/98 P.S. G.K.I Page No.2 of 25 be implicated in a police case. The aforesaid act was done by the accused persons with the sole purpose to pressurize him to vacate the premises within three days and had also made him sign on a paper with undertaking to vacate the premises without the consent of the complainant. On 21.09.1998 when the complainant locked his room and had gone and had checked his room on 22.09.1998 and on 23.09.1998 the lock of the door was intact but on 25.09.1998 when around 11.00 AM he reached the aforesaid premises, accused Harbaksh Reyar stopped him from entering the premises. Thereafter, he went to police station G.K.I and came back to the spot alongwith HC Yasin and found that his articles were not present in his room and another lock was placed on the door of his room. At that time, complainant also found that the goods belonging to him were kept in the garage and both the accused persons had removed the lock of the complainant and had put their own lock with the sole purpose to dispossess the complainant. Further, on 09.10.1998 the complainant had received the left over articles/some articles from the garage and some of his articles were still in the possession of the accused persons. Thereafter, on the complaint of complainant a vigilance inquiry was conducted and a report was filed on 07.10.1998 by Insp. Shoban Singh after enquiry and recording the statement of the witnesses.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused persons in compliance of Section 207 Cr.P.C.
FIR No. 392/98 P.S. G.K.I Page No.3 of 253. On the basis of material placed on record, charge was framed against the accused Harpreet Malik under Section 448/380/34 IPC to which she pleaded not guilty and claimed trial. Accused Harbaksh Reyar was charged for the offence but the same could not be signed as exemption application was moved on behalf of accused Harbaksh Reyar and local commissioner was appointed to get the charge signed by the aforesaid accused but the same was received back unsigned with the plea of the accused that she was legally insane/mentally unfit to understand the consequences and during trial the accused was declared to be mentally unfit as she was of 92 years of age after seeking medicine reports from Psychiatrist at IHBAS. The matter was fixed for prosecution evidence. To prove its case the prosecution has examined as many as four witnesses. PE was closed on 17.10.2016 and subsequently statement of accused Harpreet Malik under Section 313 Cr.P.C. was recorded on 11.11.2016.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter.
PW1 Anil Sharma (complainant) deposed that on 08.10.1997, he had obtained second floor on rent from accused Harbaksh Reyar for running advertising business. On 21.09.1998, a false complaint against him regarding outrage of modesty of Harpreet who was daughter of accused Harbaksh Reyar for pressurizing to vacate the above said floor was filed. Thereafter, one police officer took him to PS and tried to settle the matter between him and the accused Harpreet Malik. Thereafter, Police official directed him to sign on blank papers and to vacate the above said floor within 23 days. He signed on blank papers on the directions of police officials. He came back from PS FIR No. 392/98 P.S. G.K.I Page No.4 of 25 and locked the above said floor. On the next date that is 22.09.1998 and 23.09.1998 above said floor was found locked which was locked by him. On 25.09.1998 at about 11:00 AM when he came there to his office, he was not allowed to enter the premises of the aforesaid house. The main gate was found locked and the land lady that was accused Harbaksh Reyar and accused Harpreet Malik, were found standing at the gate and he was restricted to enter into his house from there. Thereafter, he went to the police station and he alongwith Ct. Yasin, came back from PS. Thereafter, the lock of the above said floor was found changed. All articles belonging to him were found in the garage which was also found locked. Police official recorded his statement as complaint which is Ex. PW1/A. He had also given a list of articles retaining by accused persons vide Ex. PW1/B. He had also given a written complaint to SHO, PS G.K.1 Ex. PW1/C when he went to PS for calling police officials.
During crossexamination, PW1 deposed that the premises which he had taken on rent consisted of one room, one kitchen and a toilet. He was not the tenant in the entire second floor and was occupying only the annexe floor situated above the garage normally used by servants. He was not residing in the said premises and the said room was his office. He again stated that it was a make shift arrangement and sometimes he used to stay there also. In those days, he was residing in Faridabad. He was running a business of advertising agency. He used to do business of advertising of certain umbrellas installed at the road intersections used by Delhi Traffic Police.
He had also lodged a complaint against a women police officer of PS G.K.1 with the CBI for demanding bribe. He did not lodge any complaint before CBI for a police official having taken his signatures forcibly on a blank paper as deposed by him in FIR No. 392/98 P.S. G.K.I Page No.5 of 25 examination in chief. He voluntarily stated that the CBI complaint was lodged prior to this incident of 21.09.1998. He did not disclose the name, rank or designation of the police official who forced him to sign on blank papers. He was forced to sign on 23 blank papers perhaps but he was not sure whether those were two or three. He had signed only the blank papers. Uma Shanker Sharma was his friend. He had also reached the police station on 21.09.1998. He had not signed any papers in his presence, however, the papers had been signed by him prior to his reaching the police station. The complaint made by the accused had been withdrawn by her. Thereafter, following questions were put to the witness by Ld. Counsel for the accused persons:
Q. How did you get to know that she had withdrawn the complaint? Ans. I was given a condition that if I signed the blank papers then she would withdraw the case.
Q. What was the allegations made against you in that complaint lodged by the accused.?
Ans. The complainant had alleged in the complaint that I was singing a song when she was passing from nearby.
He had read the said complaint. There was no mention of the presence of husband of the accused. There was no allegation of his having called the accused to his room. Again said he had not read the entire complaint and he could only have a glimpse of the complaint when it was lying with the police officer.
It was wrong to suggest that he had deposed falsely regarding the complaint being false because he had not even read the said complaint as deposed by him above.FIR No. 392/98 P.S. G.K.I Page No.6 of 25
He reached the police station on 21.09.1998 at about 2:00 PM to 03:00 PM and remained there for about 01 hour. Thereafter, he went to the room. He had gone to his room alongwith Mr. Uma Shanker Sharma. There was no other person alongwith them on that day. He remained in his room for about 1 2 hours and thereafter he left for his house at Faridabad.
He had visited his room on 22.09.1998 and had gone into the room and had gone there for 5 - 10 minutes to get some documents. He had gone there to his room on 23.09.1998 also. On 23.09.1998 he had gone there for 5 10 minutes. His room had electricity in previous 23 months from 21.09.1998. He voluntarily stated that accused persons used to disconnect the electricity during that period and the supply of electricity was regularized upon the intervention of 100 number call. He must have mentioned the above facts of disconnection of electricity in his statement dated 10.10.1998. (Witness was confronted with Ex. PW1/A wherein it was not so recorded. ) In the said compliant he had also mentioned that the accused Harpreet Malik, was found standing there and had restricted him from entering the premises. (He was confronted with Ex. PW1/A wherein the name of accused Harpreet Malik was not record.) It was correct that when he lodged the complaint Ex PW1/A all his articles were found in the garage. It was correct that in the complaint Ex. PW1/A dated 10.10.1998 he did not mention about any specific article found missing.
A vigilance enquiry was also conducted in this matter. Statement of his servant and himself was recorded and that of Mr. Uma Shanker Sharma must have also been recorded. He had never seen the report of vigilance nor did he know as to what was the FIR No. 392/98 P.S. G.K.I Page No.7 of 25 outcome of the said enquiry.
It was correct that on 21.09.1998, there was a discussion as to whether he was to be given 07 days time as demanded by him or 03 days time to vacate the premises. Again said he had never agreed for any number of dates. He had never lodged any complaint regarding false or wrong findings given by the vigilance enquiry. He had engaged a lawyer to represent him in this case. He had all the copies of the documents as given in the charge sheet and file of this case. It was correct that in Ex. PW1/B he had given the details of all the articles which were taken by him and also the articles which were still lying there. It was correct that he have not mentioned about any article which was missing in the Ex. PW1/B. It was correct that he had not mentioned about the mobile phone or money bank etc. in Ex. PW1/B. He had seen Ex. PW1/C in which he had mentioned that all his belongings were in the custody of his landlady out of which he wanted to take out all important documents and necessary items of his daily use, rest belongings should be kept there only. It was correct that after writing the application Ex. PW1/C, he took away articles as mentioned in encircled portion marked as Mark X1 of Ex. PW1/B and the articles mentioned in the remaining portion of Ex. PW1/B were still lying there.
His statement was recorded by Vigilance Officers. However, he did not know if the statement of Uma Shankar was recorded by Vigilance. He did not know if Uma Shankar was already very well know to SHO and ACP. He did not know if Uma Shankar had stated in his statement that he had signed a written letter in front of them. He had stated in his complaint that his signature was obtained on blank paper. He was confronted with EX.PW1/A where there was no mention of blank paper. He voluntarily FIR No. 392/98 P.S. G.K.I Page No.8 of 25 stated that when it was mentioned that his signature was taken on a paper means there were nothing written on paper. He did not know if Uma Shankar had made a false statement before the vigilance. He did not know if any paper was missing in the said file. He had only seen his statement, therefore, did not know if the statement of Uma Shankar was available on police file or not. He had also seen EX.PW1/B. He had also mentioned the details of whatever articles were still lying there. The same were mentioned in encircled portion X2 of EX.PW1/B. It was correct that EX.PW1/B he had not given description of any articles which was missing. After seeing the letter dt. 10.10.98 EX.PW1/DA, he had given the description of six items which were missing. He voluntarily stated that he was not aware of the missing articles as mentioned in EX.PW1/DA at the time of preparing document EX.PW1/B dated 09.10.98 as the abovesaid missing articles remained in iron almirah and he could not count properly the articles therein. It was correct that he did not mention either in EX.PW1/B or in EX.PW1/DA or in his complaint EX.PW1/A or in any statement made to the police, vigilance or any other statement made to the police regarding the almirah being locked and that he had not checked the same. The articles mentioned in the portion X1 of EX.PW1/B were taken from the garage and the articles mentioned in portion X2 of EX.PW1/B were also lying in the same garage. The almirah was locked. He did not know who was having the key. However, almirah was his. However, he had not mentioned about the key in his statement. It was correct that he had stated to the police that he was taking all his important articles with him.
Thereafter, following questions were asked to the witness by Ld. Counsel for accused.
FIR No. 392/98 P.S. G.K.I Page No.9 of 25Q Is it a fact that you had stopped using the room in question 2/3 months prior to September 1998 and had stopped paying rent also?
Ans. No. Q Had you shifted to Malviya Nagar in 1998?
Ans. I had not shifted to Malviya Nagar prior to the incident of present case. Q On 21.09.98 did you sign one paper or more than one paper in the PS? Ans. I had signed one blank paper and one compromise kind of a letter. Q Who had written the compromise letter?
Ans. I do not know who had written the compromise letter and it had not written in my presence.
Q What is the document marked "Y" available on page 39 of the judicial file? Ans. It is the compromise letter which bears my signature at point A and signatures of Mr. U.S. Sharma at point B and that of Harpreet Malik at point C and signature of H.C. Mohd. Yasin Khan at point D. Q. Was the other paper signed by you Mark X?
Ans. It was a blank paper.
Q Which of the two papers was got signed from you twice?
Ans. It was the blank paper which was got signed from me twice. When I signed it no one else had signed the same.
The witness was shown document marked as document X and further asked the following questions:
Q Is this document X is the one on which you say your signature was taken twice and was blank at the time of putting your signature?FIR No. 392/98 P.S. G.K.I Page No.10 of 25
Ans. Yes. The document X is exhibited as EX.PW1/DA1 and is available on page 333. Q Whether you had signed the statement given by you before the Vigilance? Ans. I had given a complaint to vigilance. I had given a statement to the vigilance which was not signed by me. Again said the statement was also signed by me. Copy of the statement shown to me bears my signatures on all the five pages and is dated 03.10.98. This statement was recorded by SI Shoban Singh and is in his handwriting.
Q Did you mention about blank paper having being got signed from you in the above statement dated 03.10.98?.
Ans. I had mentioned about the document which was signed by me and that document was having some witting on it which was concealed from me. Therefore, for me it amounting to kind of singing a blank paper.
Q The witness has shown the portion Mark Y to Y1 on the above statement dated 03.10.98 (now exhibited as EX.PW1/DB) wherein it is mentioned that Mr. Yasin Khan was told that I had vacated the premises and after keeping my good on the ground floor had gone to get a truck and did not return. The portion mark Y to Y1 is not my narration and the same was made by the landlady.
Thereafter, portion from Z to Z1 of EX.PW1/DB (running into five pages) was shown to the witness and asked if he had made such statement or had answered the questions.
It was correct that he had answered the aforesaid question from Z to Z1 were made by him.
Thereafter, document EX.PW1/DC from the judicial file was shown to the witness to which he stated that document was in his handwriting and the same was FIR No. 392/98 P.S. G.K.I Page No.11 of 25 signed by him.
Thereafter, portion A to A of EX.PW1/DC (running into three pages) was read over the witness and he was asked the following question:. Q Is it correct that the above portion you have stated to the DCP that you were aware of the content of the document which were written on the paper allegedly forcibly got signed from me?
Ans. No. In the document EX.PW1/B, the point in respect to "20 piece stepper and plus dandey" is referred to as a fitness equipment. Further, the other articles such as stepper pads, 50 piece stepper meter, 20 piece pedo meter are fitness equipment. They were related to my business.
Q I suggest to you in this portion, portion X2 of EX.PW1/B you have given full details of all the remaining articles, hence the additional list of missing articles given by you subsequently in EX.PW1/DA is an after thought and concoction. What you have to say? Ans. No. Q Is it correct that the document EX.PW1/DC you have not mentioned about your visit to the premises on 22 and 23.09.98?
Ans. I do not remember however if the document shown to me I can answer the same. Document is shown to the witness.
Ans. It is correct that I have not mentioned the same.
Thereafter, the witness denied all the suggestions put to him.
PW2 HC Amit deposed that he was a summoned witness and he had FIR No. 392/98 P.S. G.K.I Page No.12 of 25 brought original FIR book in which FIR No. 392/98, PS. G.K.1, serial no. 717 was mentioned. Carbon copy of the same attached with file was compared with original which was now Ex. PW2/A. HC Puran Singh who had recorded the present FIR had retired and was not traceable.
PW 3 Retired ACP Shoban Singh deposed that in the year 1998, he was posted as Inspector (Vigilance) South District. He was entrusted a complaint of Anil Sharma to enquire the allegations made by him regarding dispossessing him from the tenancy of one Harbaksh Riyar r/o M43, Second Floor Servant Quarter, G.K.1, New Delhi. He conducted the enquiry and submitted his report to DCP vide EX.PW3/A. The allegations made in the complaint was found correct and recommended by him for registration of case u/s 448 IPC to local police.
During crossexamination, PW3 deposed that he conducted the enquiry as a police officer or arbitrator. He is a graduate. He was not a law graduate. He conducted the enquiry on the complaint already exhibited as EX.PW1/DC. He did not remember if he had recorded the statement of witnesses or a person but he could say about it only after going through the file. He did not make seizure of any article/proof or any other evidence. He did not take any photographs or finger prints from the spot. However, he visited the spot. Upon being asked whether the allegation of theft made by the complainant in his complaint were enquired by him but he replied that he did not know about the same.
He stated that he had not made any recommendation for registration of case for theft. He had not given any list of article nor did he check the articles belonging to the FIR No. 392/98 P.S. G.K.I Page No.13 of 25 complainant. It was alleged in the complaint that landlady and her daughter got his signatures in blank paper after threatening him for implicating him in false case. This allegation of forcible signature was not against any police official. It was a matter of record whether he made any recommendation of registering a case for forcible signatures. He had seen the judicial file and there was only one statement (photocopy of statement of Sh. Uma Shankar Sharma available on record which was recorded by him during enquiry). It was correct that at point A to A on the last page of his report EX.PW3/A, he had reported to the effect that Anil Sharma had compromise to give the vacant possession of rented premises to landlady within three days at his own Will and consent. It was correct that in portion B to B of his report on last page, he had mentioned that landlady and her daughter stated that they had not dispossessed Anil Sharma as he had vacated the premises at his own and had gone to fetch a tempo but did not turn up. He did not know if the IO had deliberately not placed on record the statement recorded by him during the enquiry.
Thereafter, document Mark PW3/D1 purporting to be written and signed by the witness, was the statement of one Sh. Uma Shankar Sharma was put to the witness and he stated that he was not sure about document Mark PW3/D1 since he could not comment unless the original of the same was shown to him.
He did not know the complainant prior to the incident. He did not record the statement of the neighbourers,residents of different floors and he did not know if there were any allegations of the complainant against the police officials. He did not himself looked into the statement recorded by him during the vigilance enquiry. It was incorrect to suggest that he did not make an effort to see the FIR No. 392/98 P.S. G.K.I Page No.14 of 25 original statement even despite the fact that he had expressed his inability to identify his own handwriting on a photocopy. Thereafter, he was shown photocopy of statement of Mrs. Harpreet Malik which was in his handwriting and bears his signatutre at point X. The same was EX.PW3/DX. The content of the statement at point B where it was mentioned about apology by Anil Sharma as well as at point C where it was mentioned that Anil Sharma was scolded by Uma Shankar Sharma wewe correct. The remaining contents of EX.PW3/DX were matter of record.
PW3 had been shown photocopy of statement of SI Ram Kishore which was in his handwriting and bears his signature at point X and Y. The same is EX.PW3/DX1. The contents of statement wewe matter of record including the statement of SI Ram Kishore to the effect that Anil Sharma had shifted somewhere in Malviya Nagar during the month of June/July 1998. It was a matter of record, if the allegations in the complaint of Anil Sharma regarding dispossession were only against Mrs. Harbakash Reyar and not against Harpreet Malik. It was incorrect that he conducted an enquiry with a design to help the complainant and to hide the true fact.
PW4 Insp. Ram Kishore (IO) deposed that in the year 1998, he was posted at PS G.K.I and on 10.10.1998 complainant Anil Sharma reached the police station and got his statement recorded Ex.PW1/1. Upon the statement of the complainant, he prepared rukka vide Ex.PW4/A. Thereafter, he alongwith complainant reached the spot and at the instance of the complainant, he prepared the site plan Ex.PW4/B. The aforesaid matter was marked to him after the registration of FIR. Thereafter, the complainant gave him another complaint dated 10.10.1998 Ex.PW 1/DA. Further, on 09.10.1998 the complainant had received some of his goods for which FIR No. 392/98 P.S. G.K.I Page No.15 of 25 the list was prepared vide Ex.PW1/B and the same was signed by him at point B. oN 09.10.1998 before taking the aforesaid goods the complainant had sought permission for which a letter was written by him which was also marked to PW4 by the SHO concerned and the same was Ex.PW1/C. In the present matter, a vigilance enquiry had been conducted and subsequent to that the matter was referred for investigation. Thereafter, he searched the accused persons who were not found at the address and they were granted anticipatory bail by the Hon'ble High Court. Thereafter, he interrogated the accused persons on 12.12.1998 and after investigation prepared the charge sheet and filed the same in the Court.
During crossexamination PW4 deposed that he did not record the statement of any neighbourer as none agreed for the same and had not taken the photographs at the spot. It was correct that on 09.10.1998 complainant had handed over a list containing articles which he had taken at point X1 and the articles which he had not received at point X in the documents Ex.PW1/B. The subsequent list Ex.PW1/DA given by the complainant on 10.10.1998 does not mention the list of articles given by him on 09.10.1998. It was correct that on document Ex.Pw1/B1 the name of the driver of the tempo and the owner of the same has been mentioned. However, he had not recorded the separate statement of the driver. He had inquired from the complainant regarding the documents pertaining to the ownership of the articles in the list Ex.PW 1/DA. However, he was told that the same shall be furnished by thecomplainant during trial. He did not take any ownership document of the document pertaining to the use of articles from the complainant and he did not obtain the signature of the complainant forcefully on any blank paper. Further, it was not in his knowledge that the complainant FIR No. 392/98 P.S. G.K.I Page No.16 of 25 was made to sign on any blank paper by any police official and he did not remember if the aforesaid fact was mentioned by the complainant during the enquiry. He did not remember if his statement was recorded during the vigilance enquiry and the document Ex.PW1/DX1 dated 21.09.1998 was not written in his presence. Further that he had collected the vigilance enquiry report from Insp. Shoban Singh and had place the same on record however, he did not record any separate statement of Insp. Shoban Singh in the present matter though he was cited as a witness. It was correct that he had placed on record document titled X which was Ex.PW1/DA1 and document Y Ex.PW1/DX1. Further, he had not placed on record the statement of witnesses if any, recorded during the vigilance enquiry during his chargesheet. Further, he was not present during the proceedings on 21.09.1998 and he did not remember if the statement of Uma Shankar Sharma was recorded. He had read the vigilance report and it was correct that after going through the document Ex.PW3/A it was mentioned that vigilance inspector Shoban Singh had recorded his statement and also the statement of Uma Shankar Sharma. Lastly that he had not recorded the statement of Uma Shankar Sharma and he did not remember if he had stated before the Vigilance enquiry that the complainant had stopped using the rented accommodation and had shifted to Malviya Nagar. Further, it was correct that the accused Harpreet Malik used to reside at Gurgaon and upon seeing document Ex.PW3/DX1 was the copy of the statement recorded by Inspector Vigilance on 03.10.1998 and the same was correct.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was FIR No. 392/98 P.S. G.K.I Page No.17 of 25 recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. Accused examined one witness in her defence.
DW01 Mahesh Kumar Malik deposed that the accused Harpreet Malik was his wife. He was visiting his motherinlaw alongwith wife on 21.09.1998. At around 11.3012.00 Noon, while he was inside the house, his wife came in and told him that his motherinlaw's tenant Mr. Anil Sharma passed lewd comments while she was standing in the drive way and asked her to come to his room which was the tenancy premises being annexy servant quarters in the rear side of the house. DW1 told his wife that lets go to his room together. When his wife entered his room and he was behind her, upon seeing her, complainant said that you have come. And when he saw DW1 behind her, he started getting agitated and started banging things such as telephones, files etc. on the table. Seeing him getting agitated, they came down and his wife called the Police.
The Police came and asked them to reach the police station alongwith Anil Sharma. When, they reached the police station his wife lodged the complaint of eve teasing which was available on the file the copy of the complaint attested by Head Constable was Ex. DW1/A. Thereafter, complainant Anil Sharma started panicking and started begging for forgiveness. One of the friends of Anil Sharma namely Sh. Uma Shankar Sharma also reached the Police Station. He also scolded Mr. Anil Sharma saying that for how long he would keep coming to Police Station for bailing him out. Sh. Anil Sharma then offer to apologized and compromise and he gave a written apology himself agreeing to vacate the premises within three days. He had signed the written FIR No. 392/98 P.S. G.K.I Page No.18 of 25 documents voluntarily. One of the document signed by Anil Sharma and his wife on that day is already exhibited as Ex. PW1/DX1. He also signed another document agreeing to withdraw the court case and for handing over the possession of the premises. The said documents is exhibited as Ex. PW1/DA1. DW1 came to know about the present case having being filed by Anil Sharma after about one year.
From the P.S they all including Anil Sharma and his servant reached the house i.e. M43, GKI, New Delhi. There Anil Sharma with the help of his servant, whose name he did not remember, brought all his belongings and goods to the ground floor and went to bring a tempo. After while he came back and saying that he was not able to get a tempo and that he would come to collect the goods in a day or two. On his request, they permitted him to keep his goods in the garage on the ground floor. The case filed by Anil Sharma was false making false accusations of theft etc. During crossexamination by Ld. APP for the State, DW1 deposed that he was the Vice President of M/s. Interglobe Air Transport Ltd. His duty hours in the abovesaid office were from 9.30 am to 5.30 pm. He has responsibility which is for 24 hours. (vol. In the year 1998 he was not working in the said company). In 1998 he was working as a General Manager with M/s. Circle Ltd. but he am not sure. Perhaps, he was working with Saudi Arabia Airlines and his duty hours in the abovesaid company was for 7 hours in a shifting mode. He did not remember, what was his shifting hours on 21.09.1998. It was wrong to suggest that on the day of incidence as stated in his examination in chief was occurred on 21.09.1998 while he was on his duty as day shifting at the above said office. It was correct that there was a rent agreement between Smt. Harbakhsh Reyar as a landlord and Sh. Anil Sharma as a tenant FIR No. 392/98 P.S. G.K.I Page No.19 of 25 executed on 08.10.1997. Copy of the same is available on the file which is now marked as MarkX. He did not know as to how much was the rent settled between them. He did not know anything about the document being shown to him. It was correct that in document Ex. PW1/DX1 dated 21.09.1998 does not mention the word that complainant namely Sh. Anil Sharma had agreed to vacate premises in question. It was correct that the document Ex. PW1/DA executed on the same day on 21.09.1998 does not mention the reason for handing over the premises and removing his belongings by the complainant. The above said document Ex. PW1/DA1 was executed in P.S. There is no witness who has signed the said document. Wife of DW1 had called the police official. He did not know whether It was made to PCR or Police Station. He had accompanied with his wife at the P.S. At that time, he alongwith his wife, Anil Sharma were present and his friend Sh. Uma Shankar reached subsequently while his servant was standing outside. The complaint made by his wife in the P.S is Ex. DW1/A. Thereafter, the complaint Ex. DW1/A was shown to the witness and witness states that it was correct that it was not mentioned in the said complaint that his wife had come to him and told him about the incident of passing comments.
He was confronted with statement Ex. DW1/A, wherein it was note so recorded. He or his wife did not gave any call detail record to the Police regarding the call made by her to Anil Sharma neither Police made enquiry regarding the above said call detail. Witness denied all the suggestions put uto him.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
FIR No. 392/98 P.S. G.K.I Page No.20 of 25As per Section 380 IPC:
Theft in dwellinghouse, etc. 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 terms which may extend to seven years, and shall also be liable to fine.
As per Section 448 IPC:
Punishment for housetrespass - Whoever commits housetrespass 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.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that in the present matter the accused persons in connivance with each other had trespassed into the house of the complainant and had committed theft of the articles of the complainant by breaking open the lock of the complainant and hence, the offence charged against the accused stands proved and accused is liable to be convicted.
9. The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has deposed contradictory. He has further argued that in the present matter there are glaring contradictions in the testimony of all the witnesses, therefore the accused is liable to be acquitted. It is argued by Ld. Counsel for accused that in the present matter FIR No. 392/98 P.S. G.K.I Page No.21 of 25 apart from PW1 who is the complainant all the other witnesses examined by the prosecution are formal in nature. He has further argued that in the present matter accused has been charged for the offence punishable under section 380 IPC and to prove the offence under section 380 IPC prosecution was required to prove that the accused had committed theft in a building, tent or vessel which was used by human dwelling or for the custody of property. He has argued that the aforesaid ingredients required to be proved have not been proved by the prosecution as prosecution has failed to show that it was the accused who had removed the articles of the complainant since in the present matter, the complainant in his statement has nowhere stated that his articles were missing infact in the document Ex.PW1/B and Ex.PW/1DA and PW 1/C the complainant himself has stated that he has obtained his articles with his own wish. Further, prosecution has failed to prove that the theft was committed with the purpose of dishonest intention to remove the property out of the possession of the complainant, as in the present matter the complainant has not stated the aforesaid fact in his complaint dated 10.10.1998 or during his vigilance enquiry. He has further argued that in the present matter during the vigilance enquiry the statement of complainant recorded by Insp. Vigilance itself shows that the complainant had voluntarily vacated the premises in question alongwith all his belongings and had even taken their possession vide Ex.PW1/DA and therefore the offence charged against the accused in respect to offence punishable under section 380 IPC does not stand proved. He has further argued that in the present matter, the complainant being a chronic litigant had filed several complaints and from the alleged date of incident on 25.09.1998 till the filing of the present complaint dated 10.10.1998 had changed his version and was cross examined FIR No. 392/98 P.S. G.K.I Page No.22 of 25 on the aforesaid aspect but the complainant did not give any proper reason and only gave evasive replies and therefore, the veracity of the witness is doubtful. Ld. Counsel for accused has further argued that in the present matter, the complainant had himself vacated the premises in question as mentioned in vigilance enquiry report Ex.PW3/A and therefore, the aspect of forceful dispossession from the premises does not arise and therefore both the averments being contrary to each other shows that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore, the accused is liable to be acquitted.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. Iin the present matter the prosecution has examined as many as four witnesses among which PW1 is the star witness of prosecution and all remaining witnesses are formal in nature. To my mind, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt as in the present matter, the complainant has not shown any plausible cause for not lodging the complaint on the date of incident and the reason for joing the vigilance enquiry and giving the statement that he has settle the matter that is when during his complaint dated 10.10.1998 he does not mention regarding the aspect of vigilance enquiry or the outcome of the same but instead had filed another application Ex.PW1/DA showing that he had taken the articles belonging to him and also in the list Ex.PW1/B. In the present matter, PW1 has failed to show the manner in which the aforesaid theft was committed and if the same was committed the reason for not FIR No. 392/98 P.S. G.K.I Page No.23 of 25 informing the police officials immediately and for waiting till 10.10.1998. Further, despite the fact that during the vigilance enquiry report the IO had stated that a public witness namely Uma Shankar Sharma and the servant of the complaint being present the aforesaid witnesses were not examined by the prosecution which again casts a shadow on the story of prosecution. Further, the complainant failed to place on record any document regarding the ownership of the stolen articles and did not furnish on record any document to prove the identification of the articles. Further the complainant placed on record different list of articles as per his convenience during investigation and therefore, the veracity of the witness is doubtful. It is further glaring to see that the IO himself has stated that at the time of incident, accused Harpreet Malik was residing in Gurgaon and not in the premises in question. The ingredients required to prove the offence punishable under section 380/448 IPC does not stand proved by the prosecution and therefore, in my considered view the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
11. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on FIR No. 392/98 P.S. G.K.I Page No.24 of 25 the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
12. On the basis of facts and circumstances, the charge against the accused does not stand proved. Accordingly, accused Harpreet Malik is acquitted of the offences punishable U/s 380/448/34 IPC.
Pronounced in open court
on 30.11.2016 (SHEETAL CHAUDHARY PRADHAN)
MM10 (SouthEast): Saket Courts:
New Delhi:30.11.2016
FIR No. 392/98
P.S. G.K.I Page No.25 of 25