Delhi District Court
State vs Sachdev Lohia & Ors. on 20 July, 2018
State v. Sachdev Lohia & Ors.
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Sachdev Lohia & Ors.
FIR No. 413/03
PS Mehrauli
U/s- 448/506/34 IPC
JUDGMENT
1 Serial No. of the case : 2032193/2016
2 Date of commission : 30.08.2003
3 Date of institution of the case : 25.03.2004
4 Name of complainant : Smt. Prema Bhandari
5 Name of accused : 1) Sachdev Lohia S/o. Sh.
Panna Lal Lohia, R/o.
Village Ghitorni, New Delhi.
2) Jagmohan S/o. Sh. Jiva
Singh, R/o. 2/27, Village Aya
Nagar, New Delhi
3) Nand Kishore S/o. Sh.
Dharam Pal, R/o. H. No.
517, Aya Nagar, New Delhi.
4) Sarvjeet Singh S/o. Sh.
Layak Ram, R/o. A-49,
Village Aya Nagar, New
Delhi.
5) Satish Kumar S/o. Sh.
Sukhpal R/o. Village
Ghitorni, New Delhi.
FIR No. 413/2003, PS: Mehrauli 1 of 31
State v. Sachdev Lohia & Ors.
6) Ravi Lohia S/o. Sh.
Harlal Lohia, Village
Ghitorni, New Delhi.
6 Offence complained of : U/s. 448/506/34 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 31.05.2018
9 Final order : Convicted
10 Date of judgment : 20.07.2018
BRIEF FACTS AND REASONS FOR DECISION
1 The brief facts of the case of prosecution are that on 30.08.2003 at
about 6.00 a.m. at Pine Drive, Farm No. 3, DLF, Chattarpur, New Delhi, all accused persons in furtherance of their common intention committed house trespass by entering into the abovesaid farm house of Smt. Prema Bhandari and also threatened to kill her and her husband. Consequently, FIR bearing No. 413/03 has been registered in the present case.
CHARGE 2 Prima facie case of commission of offence under Section 448/506/34 IPC was made out against all accused persons. Charge u/s. 448/506/34 IPC was framed upon the accused on 25.02.2005, wherein the accused persons pleaded not guilty and claimed trial.
FIR No. 413/2003, PS: Mehrauli 2 of 31
State v. Sachdev Lohia & Ors.
EVIDENCE LED BY THE PROSECUTION
3 The prosecution has examined eight witnesses in all.
PROSECUTION WITNESS
Srl. PW Name Designation
No. Nos.
1 PW-1 Sh. Rohit Diesh Witness to payment
of money by the
complainant to Mr.
Rafiq.
2 PW-2 Smt. Prema Bhandari Complainant
3 PW-3 Sh. Devender Singh Director of Company
'Dev Vig Security
Services Pvt.
4 PW-4 Sh. Rafiq Ahmad public witness
5 PW-5 Sh. Balak Ram public witness
6 PW-6 Sh. Kaushal Kumar Security Guard in
Dev Vig Security.
7 PW-6 SI Subhash Assisted the IO
(wrongly
mention
ed as
PW-6)
8 PW-7 Retd. SI Bikram Singh IO of the present
case
9 PW-8 HC Harender MHC (M)
4 Prosecution has relied upon the following documents:-
Srl. Exhibited by Contents Exhibits
Nos.
FIR No. 413/2003, PS: Mehrauli 3 of 31
State v. Sachdev Lohia & Ors.
1 PW-1 receipts copies Ex.PW-1/A &
Ex.PW-1/B
(Ex.PW-
1/A-1 &
Ex.PW-1/B-
1)
2 PW-2 Smt. copy of will and annexures Mark X-1 to
prema Bhandari X-12
Receipts regarding Ex.PW-1/A &
settlement of dues and Ex.PW-1/B
accounts
Complaint Ex.PW-2/A
Seizure Memo in respect of Ex.PW-2/B
seizure of some chairs, one
cot, sign boards from the
Farm Land
Seizure Memo in respect Ex.PW-2/C
of photocopies of original
sale deed dated
16.01.1965, her father's will
dated 18.03.2003,
electricity bill for the months
of June & July, 2003, two
receipts signed by Rafeeq
Ahmed
Copy of Sale Deed Mark X-13
Copy of electricity bill Mark X-14 &
Mark X-15
3 PW-3 Sh. Receipts Ex.PW-3/A &
Devender Singh Ex.PW-3/B
4 PW-6 SI Arrest Memos of all Ex.PW-6/A
Subhash accused persons namely to Ex.PW-
(wrongly Ravi Lohia, Satish Kumar, 6/F
mentioned) Sachdev Lohia, Nand respectively
Kishore, Sarabjeet Singh
FIR No. 413/2003, PS: Mehrauli 4 of 31
State v. Sachdev Lohia & Ors.
and Jagmohan Singh
Personal search Memos in Ex.PW-6/G
respect of aforesaid to Ex.PW-
accused persons 6/L
respectively
5 PW-7 Retd. SI Rukka Ex.PW-7/A
Bikram Singh Site Plan Ex.PW-7/B
DD No.39-A Ex.PW-7/C
6 PW-8 HC Entry No. 2234 in Register Ex.PW-8/A
Harender No. 19 regarding receipt of
case property
5 PW-1 Sh. Rohit Diesh proved the certified copies issued by
Hon'ble Court of Delhi as Ex.PW-1/A-1 and Ex.PW-1/B-1 (already Ex.PW-1/A & Ex.PW-1/B).
6 PW-2 Smt. Prema Bhandari deposed that her land on three Pine Drive, DLF, Chattapur Farms, Mehrauli was in the ownership and possession of his Lt. father namely Sh. D.R. Sondhi and after death of her father on 28.04.2003, the said land was bequeathed to her by her father through his will dated 18.03.2003, she being the only child. The copy of said will and Annexures are proved as Mark X-1 to X-12. PW-2 further stated that therefore, the said agricultural land measuring 18 Bighas, 6 Biswas was in her ownership and possession after the death of her father and the said land was looked after by Rafeeq Ahmad until 07.08.2003, when she settled all his dues and account by paying him a total sum of Rs.2,30,000/- and placed on record copy of the receipts, one in Hindi and one in English. As per PW-2, at around late June, July, FIR No. 413/2003, PS: Mehrauli 5 of 31 State v. Sachdev Lohia & Ors.
2003, Mr. Rafeeq had appointed Dev Vig Security Services to look after the said farm land and Mr. Davinder Singh was the head of the Dev Vig Security and after Rafeeq Ahmad left the services on 07.08.2003, two of his Guards were looking after the farm land (one for the day time and one for the night time). PW-2 further stated that early in the morning on 30.08.2003, at around 7.00 - 7.30 a.m., Davinder Singh of Dev Vig Security rang her up and said that about 20 - 25 people had forcibly entered the premises i.e. the said farm land and had threatened his guards and beaten them and had forced them out of the said farm land, after which, she alongwith her husband and son namely Kabir went to the said Farm Land and there, they found 8 - 10 people, some of them were outside and some of them were inside the Gate of the said farm land and one of them identified himself as Sachdev Lohia and said that the said farm land belongs to him. PW-2 deposed that she told the accused persons that the said Farm land belongs to her but they did not let her enter and threatened her husband, son and herself with dire consequences and also threatened to kill them, after which, she went to the police.
PW-2 correctly identified the accused persons in the court. PW-2 further deposed that she gave complaint in writing to the Police and same stands proved as Ex.PW-2/A. Thereafter, Police also took into possession and seized some chairs, one cot, sign boards from the said Farm Land and the seizure memo in this regard is Ex.PW-2/B. PW-2 also proved the photocopies of original sale deed dated 16.01.1965, photocopy of his father's will dated 18.03.2003, electricity bill for the months of June & July, 2003, & photocopies of two receipts FIR No. 413/2003, PS: Mehrauli 6 of 31 State v. Sachdev Lohia & Ors.
signed by Rafeeq Ahmad as Mark X-13( Colly.), Mark X-1 to X-12, Mark 'X-14' and Mark 'X-15' and Mark PW-1/A & Mark PW-1/B respectively.
7 PW-3 Sh. Davinder Singh deposed that he is the Director of Dev Vig Security Service Pvt. Ltd. Company, situated at A-11/1, Sultanpur, Behind Gurdwara, ND, PS Fatehpur Beri and he had provided the service of security guard to Ranjee Bhandari, who is husband of Prema Bhandari since 2001. PW-3 stated that in the year 2003, he also provided service of two Security Guards to Mr. Ranjee Bhandari on his request at his farm house 3 Pine Drive DLF, Chattapur, New Delhi and as per him, Balak Ram and Kaushal were deputed as security guards in the farm house for 24 hour duty and on the request of Ranjee Bhandari, the repair work of the wall near the main gate was got conducted through mason Sh. Ram Chander (Mistry).
PW -3 stated that in the month of August, 2003, he was informed telephonically by the Security Guards namely Balak Ram and Kaushal that about 15-20 persons had trespass into the above said Farm House and took the possession of the said farm house, and they also forced them (i.e. Security Guards ) to leave the above said farm house and he conveyed the same to Ranjee Bhandari.
Witness identified his signature on receipt already Mark PW-1/A and Mark PW-1/B and subsequently the same stands proved as Ex.PW- 3/A and Ex.PW-3/B. The said witness was cross-examined by Ld. APP and during his said cross-examination, his statement U/s. 161 Cr.P.C. stands proved as Ex.PW-3/C. FIR No. 413/2003, PS: Mehrauli 7 of 31 State v. Sachdev Lohia & Ors.
8 PW-4 Sh. Rafiq Ahmad deposed that he obtained Sondhi Farm, DLF, Chattarpur on lease basis and the said lease continued for about 14-15 years and thereafter, when owner of the said farm namely Dhanraj Sondhi passed away, the said farm house was handed over to his only daughter namely prema Bhandari on her request. Rs.2,30,000/-.
9 PW-5 Sh. Balak Ram deposed that in the year 2003, he was working as Security Guard at DLF Chattapur in Bhandari's farmhouse and on 29.08.2003, his duty hours were from 6.00 p.m. to 6.00 a.m.when at about 5.00 a.m., 10-15 persons came inside the farmhouse and started beating him and another secuirty guard namely Kaushal from fists and blows and dandas. PW-5 stated that the accused persons instructed them to take their all belongings and go away from the spot and if they informed anyone about the same, they will kill them, after which both he and Kaushal fled away from the spot. As per PW-5, Kaushal informed about the same to the owner and stated that the accused persons had beaten them severely and he sustained injury on his stomach.
PW-5 correctly identified the accused persons in the court by their faces.
10 PW-6 Sh. Kaushal Kumar deposed that on 03.08.2003, he was working as Security Guard in Dev Vig Security and on that day, he was posted at pinewood farm house, Chattarpur and his duty hours were FIR No. 413/2003, PS: Mehrauli 8 of 31 State v. Sachdev Lohia & Ors.
from 6.00 a.m. to 6.00 p.m. PW-6 stated that on that day, when he reached on his duty, 4-5 persons came into the farm house by climbing the boundary wall and one of the accused persons opened the door and the remaining came from the door after which, the accused persons snatched the key of the main gate and asked him to go else, they would kill him and accused persons also started beating him and Balak Ram and also threatened them not to remain in Delhi else he would face the dire consequences. PW-6 stated that thereafter, they left the spot due to fear and went to Sultanpur and he called Devender Singh and informed him about the incident.
11 PW-6 SI Subhash (wrongly mentioned as PW-6) deposed that on 30.08.2003, he was posted at PS Mehrauli and on that day, he received DD No. 39A regarding the incident i.e. presence of some persons at Pine drive, DLF Chhattarpur farms, after which, he went to the spot and found that Sachdev Lohia along with his associates were present there and enquired from him and he informed that he had not made any call. Thereafter, he returned to the PS Mehrauli and informed to SHO, PS Mehrauli. SHO called SI Vikram Singh and asked him to look into the matter. PW SI Subhash further stated that he along with SI Vikram Singh went to the spot and in the meanwhile complainant Ms. Prema Bhandari reached at the spot and gave a written complaint to SI Vikram Singh, after, which he prepared a tehrir/rukka and handed over the same to him and sent him to PS for registration of FIR. After registration of FIR, he returned to the spot and handed over the copy of FIR and original rukka to SI Vikram Singh. Thereafter, SI Vikram arrested FIR No. 413/2003, PS: Mehrauli 9 of 31 State v. Sachdev Lohia & Ors.
the accused namely Ravi Lohia, Satish Kumar, Sachdev Lohia, Nand Kishore, Sarabjeet Singh and Jagmohan Singh vide memos Ex. PW6/A to PW6/F respectively and also conducted their personal search vide memos Ex. PW6/G to PW6/L respectively and IO SI Vikram Singh seized the articles from the spot vide memo already Ex. PW2/B and also seized documents vide memo already Ex. PW2/C. Thereafter, they returned to the PS along with accused persons.
PW SI Subhash correctly identified all accused persons in the court.
PW SI Subhash correctly identified the case property i.e. 4 chairs and 1 folding bed. On 1 board, some suit no. is written but the number is not legible and on the other board words "Lohia Farm" was written. The case property stands proved as Ex. P1 (collectively).
12 PW-7 Retd. SI Bikarm Singh deposed that on 30.08.2003, he was posted at PS Mehrauli and on that day, he received DD No. 39-A regarding threat made at 3, Pine Drive, Chattarpur and same stands proved as Ex.PW-7/C, after which, he alongwith HC Subhash reached at the spot and met complainant Smt. Prema Bhandari and the complainant gave complaint to him and made endorsement and prepared rukka, which was proved as Ex.PW-7/A and handed over the same to HC Subhash and sent him to PS for registration of the FIR. PW-7 further stated that he prepared the site plan at the instance of complainant vide Memo Ex.PW-7/B and also recorded statements of witnesses.
PW-7 correctly identified all accused persons in the court.
FIR No. 413/2003, PS: Mehrauli 10 of 31 State v. Sachdev Lohia & Ors. 13 PW-8 HC Harender brought the case property, which was seized
in FIR No. 413/03 alongwith Register No. 19 and deposited by IO/SI Bikram Singh on 30.08.2003. The case property were four plastic chairs, one folding iron bed, one notice board and two another boards and the relevant entry No. 2234 in Register regarding the deposition of the same was proved as Ex.PW-8/A. 14 Thereafter, PE was closed on 04.12.2017.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
15 Joint statement u/s 313 Cr.PC of all accused persons namely Sachdev Lohia, Jagmohan, Nand Kishore, Saravjit Singh, Satish Kumar and Ravi Lohia was recorded on 15.12.2017 wherein, they opted to lead defence evidence in their defence and the matter was listed for defence evidence.
DEFENCE EVIDENCE 16 Accused persons have examined one witness in their defence.
Srl. No. DW No. Name Designation
1 DW-1 Sh. Amrish Anand Ahlmad in the Court of Sh. Anil
Antil, Ld. ADJ, South East, New
Delhi.
17 The defence has relied upon the following documents i.e.
FIR No. 413/2003, PS: Mehrauli 11 of 31
State v. Sachdev Lohia & Ors.
photographs placed on the record i.e. Ex.PW-2/D-6, Ex.PW-2/D-10 to Ex.PW-2/13, Original GPA Ex.DW-1/4 and Will Ex.DW-1/5, Agreement to Sell Ex.DW-1/1, Possession Letter Ex.DW-1/3, Complaints to the Police Ex.DW-1/6, Ex.DW-1/7, Mark X-6 & Mark X-7 and Ex.DW-1/P-1.
LEGAL PROVISIONS 18 Section 503 is stated as under : -
Criminal Intimidation: - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Section 506 IPC is stated as under : -
Punishment for criminal intimidation: - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. : - And if the threat be to cause death or grievous hurt, or to cause the destruction of FIR No. 413/2003, PS: Mehrauli 12 of 31 State v. Sachdev Lohia & Ors.
any property by fire, or to cause an offence punishable with death or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fin, or with both.
Threat to reputation : - Where criminal intimidation was committed by threatening X and his daughter with injury to their reputation by having the indecent photographs published; the intent mentioned was to cause alarm to X and his daughter, hence the appellant was clearly guilty of the criminal intimidation and it was held that the conviction of the appellant under Section 506 is correct;
Section 441 states as under :-
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 states as under :-
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 FIR No. 413/2003, PS: Mehrauli 13 of 31 State v. Sachdev Lohia & Ors.
custody of property, is said to commit "house-trespass".
Section 448 states as under : -
Punishment for house-trespass: - Whoever commits house trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 40 of The Indian Evidence, Act 1972 states as under : - Previous Judgments relevant to bar a second suit or trial: The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the questions is whether such Court ought to take cognizance of such suit, or to to hold such trial.
Section 41 of The Indian Evidence, Act 1972 states as under : - Relevancy of certain judgments in probate, etc., jurisdiction - A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof -
FIR No. 413/2003, PS: Mehrauli 14 of 31 State v. Sachdev Lohia & Ors.
that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation ;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, (order or decree) declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment [order or decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property.
Section 42 of The Indian Evidence, Act 1972 states as under : - Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41 - Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders, decrees are not conclusive proof of that which they state.
Section 43 of The Indian Evidence, Act 1972 states as under : -
Judgments, orders or decrees, other than those mentioned in Sections 40, 41 & 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.
FIR No. 413/2003, PS: Mehrauli 15 of 31 State v. Sachdev Lohia & Ors. FINAL ARGUMENTS 19 Ld. APP for the State argued that the testimony of prosecution
witnesses are consistent and corroborate each other and are sufficient to seal the case of the prosecution and therefore, the accused persons are liable to be convicted.
The counsel for the accused persons argued that the testimony of the prosecution witnesses are not sufficient to convict the accused persons and therefore, the accused persons should be given the benefit of doubt as the prosecution has failed to discharge the burden of proof that lay on them.
20 The following judgments are relied upon by both parties : -
JUDGMENTS RELIED UPON BY COUNSEL FOR ACCUSED PERSONS
1) Rash Behrari Chatterjee Vs. Fagu Shaw & Ors. [1969 (2) SSC 216] (In this judgment, the Hon'ble Supreme Court had observed that in cases U/s. 441/447 IPC, there must be an intent to annoy and without this intent, the offence of trespass cannot be made out.)
2) Kishan Singh [through LRs] Vs. Gurpal Singh& Ors. (Crl.
Appeal No. 500 of 2010 [Arising out of SLP (Crl.) No. 5440 of 2009)] (In this judgment, the Hon'ble Supreme Court has observed that the FIR No. 413/2003, PS: Mehrauli 16 of 31 State v. Sachdev Lohia & Ors.
findings of fact recorded by Civil Court do not have any bearing as far as criminal case is concerned and vice -a-versa. Standard of proof is different in Civil and Criminal cases. In Civil cases, it is preponderance of probabilities while in criminal cases, it is proof beyond reasonable doubt. However, there may be cases where the provisions of Section 41 to 43 of the Indian Evidence Act may be applicable and the relevance of previous judgment in subsequent cases may be taken into consideration.)
3) Amitabh Adhar Vs. NCT of Delhi [2000 Cr.L.J. 4772], Kanshi Ram vs. State {[2000 IV AD Delhi 495], Surender Nath vs. State & Ors. [2007 98 DRJ 628] & Manik Taneja Vs. State of Karnataka [SLP Cri. 6449/2014 DOD 20.01.2015]. (In all these judgments, Section 506 IPC was dealt with and it was observed that mere threat is no offence and intimidation must achieve the level of causing alarm.)
4) Seema Gupta Vs. State & Ors [Crl. M.C. No. 3819/2011 DOD 05.09.2012] & State of Haryana Vs. Prem Singh [2007 2 RCR (Cri.) 537; 2007 0 Supreme (P&H) 300 [In these judgment, the Hon'ble High Courts have observed that the building as specified U/s. 442 IPC must be used for human habitation and therefore, a school not being used for human habitation cannot be said to be a dwelling house and the offence of house trespass is not made out.
5) Sachdev Lohia Vs. Prema Bhandari &Ors. (RFA 845/2017) Order dated 01.03.2018 of Hon'ble High Court of Delhi. (In this case, FIR No. 413/2003, PS: Mehrauli 17 of 31 State v. Sachdev Lohia & Ors.
the judgment passed by the Ld. ADJ Court dated 27.02.2017 was not appealed and therefore, the judgment attained finality. Also the Hon'ble Delhi High Court had directed the Sub Registrar, Kashmere Gate regarding the two documents i.e. a GPA and the Will stated to have been executed by the deceased Sh. D.R. Sondhi, in favour of the appellant Sachdev Lohia.
JUDGMENTS RELIED UPON BY COUNSEL FOR COMPLAINANT /Prosecution
1) Abul Hossain & Ors Vs. Masadul Haq & Anr. [1971SCC Online Cal. 140: 1972 Cri. L.J. 1499] (This order of the Hon'ble Calcutta Hight Court was relied upon by the complainant to stress that civil trespass becomes criminal trespass when it is attended by use of criminal force or show of force or intimidation. Resistance of the command to quit the trespass premises either by threats of injury to the owner, even by words of mouth or intimidation or by actual use of criminal force makes the trespass criminal in nature.)
2) Smt. Prema Bhandari Vs. Sachdev Lohia (Suit No. 1772 of 2003) This judgment was relied upon by the complainant to show that they were in possession of the disputed land and were the owners thereof and this fact has been decided by the Ld. ADJ Court vide their judgment dated 27.02.2017.
3) Amulya Kumar Behera Vs. Nabaghana Bahera @ Nabina &
FIR No. 413/2003, PS: Mehrauli 18 of 31
State v. Sachdev Lohia & Ors.
Ors. (1995 SCC Online Ori317:1995 Cri. L.J. 3559) & Muhammad Ahmad Khan Vs. Emperor (1935 SCC Online All 296 : AIR 1936 ALL 171: 1936 ALL LJ 195: 1936 Cri. L.J. 212) Crl. Rev. No. 753 of 1935 decided on November 18th, 1935 (In both these judgments, it was observed that to make a threat indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man. The case where the threat produces an alarm is comparatively a simple one but where the threat has not that effect, it involves a question whether it was sufficient to over come a man of ordinary nerves. The gist of the offence U/s. 506 IPC is the effect which the threat is intended to have upon the mind of the person threatened.
4) Hari Singh Vs. State [2011 SCC Online DEl 1556] (Crl. A. 598/2001 DOD 29.03.2011)] (This judgment was relied upon by the complainant to stress upon the fact that in order to convict U/s. 506 IPC, there must be intention to cause alarm to the victim and whether the victim is alarmed or not is really of no consequence.)
5) Mata Din Singh Vs. The State (Crl. Revision No. 1516 of 1962) [Vol.XVI-(2)] Indian Law Reports 693. (In this judgment, it was observed that there is nothing in Section 441 IPC, which requires that the intimidation, insult or annoyance, which is caused to the person in possession of a property as a result of the entry upon that property should be instantaneous and confined only to the moment of entry. Also, the argument that the intention of the petitioner was not to insult, intimidate or annoy but only to take possession of the property in dispute FIR No. 413/2003, PS: Mehrauli 19 of 31 State v. Sachdev Lohia & Ors.
was not accepted by the Court and it was observed that it must have been obvious to the petitioner that his act in breaking open the lock of the property in possession of Krishan Chand must cause annoyance to him.) JUDGEMENT RELIED UPON BY BOTH ACCUSED PERSONS AS WELL AS COMPLAINANT
1) K.G. Premshanker Vs. Inspector of Police [(2002) 8 SCC 87] ( In this judgment, the Hon'ble Supreme Court had observed that Section 42 of Indian Evidence Act would have some bearing and the judgment & decree passed in a Civil Court would be relevant even in a trial before a Criminal Court, if it relates to a matter of public nature, relevant to the enquiry but such judgment and decree is not a conclusive proof of that which it states. )
2) Dalchand Vs. State [RLW-1964] (S.B. Cr. Revision. 258 of 1963, decided 27th August, 1964) (In this judgment, it was decided that a tin shed cannot be considered a building used to human dwelling, therefore, Section 442 IPC is not attracted.
COURT OBSERVATIONS 21 After going through the charge sheet, the testimony of prosecution witnesses, defence raised by accused, the judgments relied upon by both parties and other material placed on record, this Court makes FIR No. 413/2003, PS: Mehrauli 20 of 31 State v. Sachdev Lohia & Ors.
following observations : -
(I) Observations with regard to Offence U/s. 448 IPC
(a) In order to prove guilt of accused U/s. 448 IPC, the prosecution must prove : -
(i) That the accused committed criminal trespass
(ii) The trespass was committed by entering into or remaining in any building, tent or vessel and
(iii) The building, tent or vessel was used as a place for worship or as a place for custody of property.
Therefore, the prosecution first must prove that the criminal trespass was committed.
(b) Criminal Trespass is defined in Section 441 IPC as under : -
Ingredients of Section 441 IPC : - Section 441 IPC has three essentials namely : -
(1) Entry into or upon property in the possession of another. (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 an offence ; or
(ii) to intimidate, insult or annoy the person in possession of the property.
FIR No. 413/2003, PS: Mehrauli 21 of 31 State v. Sachdev Lohia & Ors.
Scope: - Section 441 IPC is aimed to protect possession and not ownership. Further, the gravamen of the offence under this Section is the criminal intention namely, the intention to commit an offence or to intimidate, insult or annoy the person in possession.
Criminal trespass has been defined in Section 441 of the Indian Penal Code. It is in two parts. It is clear from the language of the both the parts of Section 441 of the Indian Penal Code that the main purpose or intention for entering into or upon such property must have been either to commit an offence or to intimidate, insult or annoy any person in possession of such property and when the accused had entered into or upon such property lawfully his possession would become criminal trespass if he unlawfully remains in possession of the property with the intention of committing an offence or to intimidate, insult or annoy the person dispossessed. In either case, the main intention or purpose had to be either to commit an offence or to insult, annoy or intimidate the person in possession or the person already dispossessed.
Also, there is a difference between civil and criminal trespass and if the intention of the accused was only to take possession and not to intimidate insult or annoy the person in possession, the trespass is only a civil trespass for which damages may be claimed in a Civil Court and the accused cannot be convicted for criminal trespass.
(c) In order to convict the accused persons U/s. 448 IPC, the prosecution must prove that the aforesaid criminal trespass took place in a building, tent or vessel used as a place for worship or as a place for FIR No. 413/2003, PS: Mehrauli 22 of 31 State v. Sachdev Lohia & Ors.
custody of property. The judgments relied upon by the accused persons namely Dalchand Vs. State (Supra), Seema Gupta Vs. State & Ors (Supra) & State of Haryana Vs. Prem Singh (Supra) are not applicable to the facts of the present case as the testimonies of the prosecution witnesses proves that the property falls within the definition of dwelling house as it is properly fenced and has to concrete structures and tube-wells and the guards are also residing in the said property.
(d) The judgment of the Ld. ADJ Court in Suit No. 1772/2003 supports the case of the prosecution as the judgment clearly gives the findings that it was the complainant Prema Bhandari, who was in continuous possession of the Farm Land since 1965 and makes an observation that the defendant was never ever in possession of the disputed premises at any point in time.
(e) As per the judgment of Hon'ble Supreme Court in K.G. Prem Shankar's case (Supra) and on the lines of Section 40 to 43 of Indian Evidence Act, the judgment given by the Civil Court may not be binding upon the criminal court, however, it is relevant and can be taken into consideration by the criminal court. Therefore, the observations of the Ld. ADJ in suit No. 1772/2003 titled as Prema Bhandari Vs. Sachdev Lohia ( Supra) is relevant for the facts of the present case. Accused Sachdev Lohia challenged the said judgment in Hon'ble Delhi High Court in RFA 845/17 and CM No. 36061/17 but later did not press for the appeals and therefore, vide order dated 09.10.2017 of the Hon'ble Delhi High Court, the said order dated 27.02.2017 of Ld. ADJ FIR No. 413/2003, PS: Mehrauli 23 of 31 State v. Sachdev Lohia & Ors.
Court attained finality. In the judgment of Ld. ADJ Court, it was held that the complainant Prema Bhandari was in possession of the disputed Farm Land since 1965 and the accused Sachdev Lohia was never in possession of the said property.
(f) PW-2 Smt. Prema Bhandari is the main witness of the prosecution and is the complainant, who deposed in her examination-in- chief that on 30.08.2003, early in the morning, she got a call from the Davinder Singh of Dev Vig Security, who told her that about 20 -25 people had forcibly entered the Farm Land and had threatened the Guards and beaten them and forced them out of the said land. PW-2 further stated that thereafter, she alongwith her husband and son went to the Farm Land and saw around 8 - 10 people, some of them were outside the gate of the Farm Land and there she saw accused Sachdev Lohia, who told her that the said Farm Land belongs to him and did not allow her to enter and threatened to kill her and her husband and son, after which, she went to the Police.
(g) The complainant was cross-examined at length on 22.11.2010, 01.02.2011, 14.02.2011, 17.01.2012, 30.04.2012, 09.07.2012, 10.07.2012, 03.11.2012 and 07.01.2013. Despite such extensive and lengthy cross-examination, the counsel for the accused persons, were not able to bring out any infirmities /inconsistency in the testimony of PW-2, the complainant.
(h) In her testimony, PW-2 Prema Bhandari deposed that on the
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day of the incident, she also saw sign boards on which Lohia Farm and Angel Irons was written. The said sign boards were recovered by the IO during the course of investigation and the case property was proved in the Court as Ex.P-1 and PW-5 SI Subhash had stated that certain boards were recovered and on one board 'Lohia Farm' was written. Therefore, the testimony of the complainant has been corroborated by PW-5 SI Subhash.
(i) The testimony of the complainant PW-2 is further corroborated by the testimonies of PW-3 Devender Singh, PW-5 Balak Ram and PW- 6 Kaushal Kumar. PW-3 Davinder Singh has stated in his examination that he provided Security Guards to the Farm Land in question in July, 2003 and he was informed in August, 2003 telephonically by the Security Guards Balak Ram and Kaushal about the trespass by the accused persons. Furthermore, PW-5 Balak Ram in his examination-in-chief stated that on 29.08.2003, while he was on duty, the accused persons entered into Farm House and started beating him and the other Security Guard Kaushal and also gave them fist blows and Danda blows and threatened to kill them, after which, they fled away from the spot.
(j) PW-5 Balak Ram identified all the accused persons in the court during his examination-in-chief by their respective faces on 22.09.2014. However, during his cross-examination on 20.01.2017, he retracted from his earlier testimony and stated that he cannot identify the accused persons, who had beaten him. Also, PW-6 Kaushal Kumar stated that about 4 - 5 people trespassed into the Farm Land by climbing FIR No. 413/2003, PS: Mehrauli 25 of 31 State v. Sachdev Lohia & Ors.
the boundary wall and they gave beatings to him as well as Balak Ram but he failed to identify the said accused persons in the Court.
(k) The testimony of a hostile witness cannot be disregarded in toto. The Hon'ble Supreme Court in the case of C. Munniapan & Ors Vs. State of Tamil Nadu cited at JT 2010 (9) SC 95 has stated that '...... the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution of defense ..... ' . Even the Hon'ble High Court of Delhi in a recent judgment in a case titled 'Sachin Vs. State of NCT of Delhi cited at '2018 SCC Online Del 8708', while examining the law on the testimony of a 'Hostile witness' in Paragraph 25 & 26, has held that the testimony of a hostile witness can be used if it supports the case of the Prosecution or the Defense and cannot be rejected in toto. Therefore, even though Devnder Singh (PW-3) and the two Security Guards Balak Ram (PW-5) and Kaushal Kumar (PW) turned hostile, their testimonies cannot be disregarded and the portion, which corroborates with the testimony of the complainant can be used by this Court. PW-5 Balak Ram totally supported the testimony of the complainant in his examination-in-chief on 22.09.2014 and it was only when he was called for his cross-examination on 20.01.2017 that he turned hostile and disowned his previous testimony. Despite the fact that both Balak Ram and Kaushal Kumar turned hostile, they both admitted that some persons had trespassed the farm land in question and they both were beaten by the said trespassers.
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(l) Therefore, the testimony of the complainant PW2 Prema
Bhandari finds corroboration on the testimonies of PW's Balak Ram, Kaushal Kumar and SI Subhash and the complainant had identified all the accused persons in the court. Even the judgment of Ld. ADJ Court in Suit No. 1772/2003 supports the case of the prosecution that it was the complainant who was in possession of the farm land in question and the said judgment given the categorical finding that the then defendant Sachdev Lohia was never ever in possession of the suit premises at any point of time.
The main defense of the accused persons is that accused Sachdev Lohia was in possession of the said Farm House on the day of the incident and had filed a Civil Suit with respect to the disputed property. The said defense of the accused persons fails in light of the testimonies of the prosecution witnesses and the judgments relied upon by the complainant. Therefore, the prosecution has been able to prove the guilt of the accused persons U/s. 448 IPC beyond doubt.
(II) Observations with regard to Offence U/s. 503 IPC
(a) Ingredients of Section 503 IPC is stated as under : -
The most important ingredient of the offence of criminal intimidation as defined under Section 503 IPC is that there should be intention to cause alarm or to cause the person threatened to do any act which he is not legally bound to do.
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The gist of the offence of intentional insult as well as criminal intimidation is the intention of the offender. In the case of an intentional insult, there must be proof of intent to provoke a breach of the peace or the commission of an offence, and in the case of criminal intimidation the intent should be to cause alarm to the person intimidated or to cause a person to do something which he is not legally bound to do, or omit to do something which he is legally entitled to do.
Intention or knowledge is necessary to constitute an offence under Section 504 IPC whether there was intention or knowledge would depend upon the surrounding circumstances of each case and no rule of general application can be formulated.
(b) Criminal intimidation is in one word a "threat" but every threat is not criminal intimidation, which is a threat of the kind and given with the intent specified in the section. But all the same, it is a threat, that is to say, a declaration of an intention to inflict injury to the person, reputation or property of an individual or group of individuals.
Whether as a matter of fact any one was actually frightened or not, cannot affect the question of the liability under this Section. It is the intention of the accused to frighten that has to be considered in deciding whether what he stated comes within the mischief of this Section. One criterion for gauging the interest of one person feels in another, is the alarm produced upon his mind. It is not of the essence of the crime, but it is both a fair measure of the accused's intention as well as of the interest of one person in another that fact is material. But the test is not an infallible one - nor, indeed, it is invariable. For the FIR No. 413/2003, PS: Mehrauli 28 of 31 State v. Sachdev Lohia & Ors.
susceptibilities of all men are not equal, and a threat which may suffice to frighten one out of his wits' will procedure scarcely any effect upon another.
(c) The complainant Ms. Prema Bhandari has specifically deposed that in her examination-in-chief that she alongwith her husband was threatened by the accused persons and they threatened to kill her if she did not leave the Farm House. After which, she lodged the complaint with the Police.
(d) The complainant identified all the accused persons and stated that they all stopped her to enter her Farm house and threatened her.
(e) The incident of trespass into the Farm House as stated by the complainant finds corroboration from the testimonies of PWs Balak Ram, Davinder, Kaushal Kumar, SI Subhash and SI Vikram Singh.
(f) The main defense of the accused persons is that no alarm was caused to the complainant and therefore, no offence U/s. 506 IPC is made out. For this the acused persons have relied upon judgments namely Amitabh Adhar Vs. NCT of Delhi (Supra ) ; Kanshi Ram vs. State (Supra) ; Surender Nath vs. State & Ors. (Supra) & Manik Taneja Vs. State of Karnataka (Supra), wherein it was observed that mere threat is no offence and intimidation must achieve the level of causing alarm.
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(g) The prosecution instead has relied upon the judgments
namely Amulya Kumar Behera Vs. Nabaghana Bahera @ Nabina & Ors. (Supra) & Muhammad Ahmad Khan Vs. Emperor (Supra), wherein it was observed that to make a threat indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man. The case where the threat produces an alarm is comparatively a simple one but where the threat has not that effect, it involves a question whether it was sufficient to over come a man of ordinary nerves. The gist of the offence U/s. 506 IPC is the effect which the threat is intended to have upon the mind of the person threatened.
(h) Therefore, whether a case falls U/s. 506 IPC or not depends upon the facts and circumstances of the case and whether any alarm is caused to the aggrieved or the aggrieved is caused to do any act, which he or she is not legally bound to do or to omit to do any act, which that person is legally entitled varies from case to case and from person to person. The tolerance level of two persons is not the same and so they might react differently under the same circumstances.
(i) In the present case, an elderly women when threatened by 5
-6 young men, is bound to be alarmed and when she is told by the said 5 to 6 men to vacate the property or else face dire consequences and the accused persons extended the threats to kill her as well as her husband, the fact that she calmly went to Police to lodge a complaint does not mean that she is not overawed by the situation. She was compelled by FIR No. 413/2003, PS: Mehrauli 30 of 31 State v. Sachdev Lohia & Ors.
the accused persons to vacate her Farm House and therefore, was compelled to do something, which she was not legally bound to do and therefore, the case falls within the purview of Section 503 IPC and the accused persons are liable to be convicted U/s. 506 IPC as there was clear cut intention to cause alarm to the victim.
22 For the reasons mentioned above, all six accused persons namely Sachdev Lohia, Jagmohan, Nand Kishore, Saravjeet, Satish Kumar and Ravi Lohia are convicted for the offences U/s. 448/506/34 IPC.
They all accused be heard on quantum of sentence.
Announced in the open (VAIBHAV MEHTA)
court on 20.07.2018 MM-5 (South), Saket Courts
New Delhi
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