Delhi District Court
State vs . Jaswant & Ors. on 4 August, 2012
IN THE COURT OF SH. DEEPAK DABAS METROPOLITAN MAGISTRATE (NORTH WEST05): DELHI FIR No. 177/1993 ID 02401R0020011993 U/s. 448/380/323/506/34 IPC PS Adarsh Nagar State vs. Jaswant & Ors. JUDGMENT
1. Sr. No of case 142/2
2. Date of commission of offence Between 27.7.93 to 4.8.93
3. Name of complainant Sh. Ramphal
4. Name of accused (i) Jaswant
(ii) Raj Kumar
Both s/o. Sh. Bhagwan Sahai
(iii) Bhagwan Sahai
(iv) Badlu Ram(expired)
Both s/o. Sh. Nathu Ram
All r/o. H No. 43
Village Azadpur, Delhi.
(v) Rajender Kumar
s/o. Sh. Pyare Lal
r/o. H No. 472G
Village Azadpur, Delhi.
5. Offence complained of u/s. 448/380/323/506/34 IPC
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 4.8.12
177/1993Adarsh Nagar page1/
BRIEF REASONS FOR SUCH DECISION:
1. The prosecution was set into motion in the present case on the basis of statement of complainant i.e. Sh. Ramphal dated 6.8.1993. In his statement the complainant alleged that he is a resident of UP and is doing the work of tailor at Lal Bagh, Azadpur. It is further alleged that he alongwith his father is residing as tenant in one room at H No. 472F, Gali Kumarwali, Azadpur, Delhi. It is further alleged that on 27.7.93 he had gone to his village after locking the door of his room and on 4.8.93 when he returned he saw that that his landlord i.e. Badlu Ram and Bhagwan Sahai had occupied the said room after keeping their own goods. It is further alleged that his goods i.e. utensils, bed, mattress, two fan, cycle, stove, bucket etc. were found missing. It is further alleged when he asked his landlords about his articles, Badlu, Rajender, Jaswant and Rajkumar started beating him with leg and fist and also threatened him of dire consequences if he(complainant) dared to report to the police. It is further alleged that he had sustained internal injuries and due to fear he did not lodge the report with the police that day. On the basis of said statement the present case was 177/1993Adarsh Nagar page2/ registered and investigation was carried out.
2. After completion of investigation, chargesheet was filed.
Accused persons were summoned and provision of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused persons in Hindi language and a charge for offences punishable u/s. 448/380/34 IPC was framed against accused Badlu Ram and Bhagwan Sahai and a separate charge for offences punishable u/s. 323/506/34 IPC was framed against accused Badlu Ram, Rajender Kumar, Jaswant and Raj Kumar. Accused persons pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined twelve witnesses in support of its case.
5. During the course of trial accused Badlu Ram expired and proceedings qua him were abated vide order dated 13.2.07.
6. PW1 is Sh. Ramphal i.e. the complainant; PW2 is Sh.
Kali Charan; PW3 is Sh. Ram Dulare; PW4 is SI Ranbir Singh i.e. the duty officer; PW5 is Sh. Ram Lakhan; PW6 is Sh. Rama 177/1993Adarsh Nagar page3/ Shankar; PW7 is Ct. Nirmal Singh; PW8 is HC Kashiram; PW9 is Sh. Chimman Lal; PW10 is SI Nand Kishore i.e. the investigating officer; PW11 is HC Kishan Lal and PW12 is HC Rohtash.
7. Thereafter, prosecution evidence was closed on 2.3.12 and statement of accused persons was recorded on 13.3.12 wherein accused persons denied the evidence that has come on record against them. They examined two witnesses in their defence.
8. I have heard Ld APP for State as well as Ld counsel for accused persons and have also carefully gone through the file.
9. PW1 Sh. Ramphal deposed that in the year 1993, he was residing at H No. 472, Kumarwali Gali, Azadpur and he was residing in the said house for the last 45 years prior to the incident. He further stated that his father was residing in the said house. He further stated that his father had to go to the Village therefore, he locked the tenanted room and went to Lal Bagh. He further stated that on the next day when he came back to the said tenanted premises he found his lock broken and some other lock was there. He further stated that he called Rajinder and Phullu and they assaulted him with jharu and fist blow. He further stated that 177/1993Adarsh Nagar page4/ thereafter accused Jaswant and Rajinder threatened him that in case he dared to report the matter to the police then they will kill him. He further stated that due to the assault he sustained injuries on his leg, waist and eye and he reported the matter to the police who recorded his statement i.e. Ex. PW1/A. He further stated that thereafter he went to his Village. He again stated that police handed over to him the possession of the said room after removing the lock of the accused persons and he found his house hold articles in the said room. He further stated that he did not receive any of his abovesaid articles. He further stated that he cannot tell whether he had handed over rent receipts to the IO or not. He further stated that his father expired on 15.8.1983. PW1 identified the bicycle as Ex. P1 and the table fan as Ex. P2. PW1 failed to identify other articles which were produced in the court.
10. In his cross examination, PW1 stated that his statement was recorded by the police in the police station between 4.005.00 PM. He further stated that at that time 34 persons namely Kalicharan, Ram Dulare and two ladies were present. He further stated that he remained in the police station for about 1½2 Hr and 177/1993Adarsh Nagar page5/ thereafter he went to his home. He further stated that police arrived at the spot after about ½ Hr of the incident and handed over the possession of the said room to him after taking the keys. He further stated that he do not remember from where the keys were taken. He further stated that police had inquired from Ram Dulare, Rama Shankar and Ram Lakhan in his presence. He further stated that some documents were also prepared in his presence. He further stated that he do not remember how many documents were prepared. He further stated that he had told to the police that his father was residing in the house in question for the last 45 years. He voluntarily stated that his father was residing there for about 14 15 years. PW1 was confronted on this aspect with his statement recorded earlier. In his cross examination PW1 was confronted on various aspects with his earlier statement. He admitted that the entire stolen property is not produced in the court. He admitted that similar cycle and fan are easily available in the market. He denied the suggestion that the said cycle and fan do not belong to him and he had identified the same at the instance of police. He admitted that the house in question was tenanted by his father. He 177/1993Adarsh Nagar page6/ voluntarily stated that he remained with his father. He denied the suggestion that accused persons had never broken the lock of the room in question and never trespassed in said room. He also denied the suggestion that nothing was stolen by accused persons or that nothing was recovered from possession of accused persons. He also denied the suggestion that accused persons never threatened or intimidated him. He denied the suggestion that his father had handed over peaceful possession of the room in question to the accused persons. He denied the suggestion that the said room was never in his possession. He also denied the suggestion that in order to grab the said room, accused persons were implicated in false case.
11. PW2 Sh. Kali Charan deposed that on 27.7.93 he was present in his shop situated at GT Road. He further stated that about 8.30 PM his wife informed him that quarrel had taken place between Ramphal and accused persons. He further stated that he did not visit the place of occurrence but had gone to the police station after about an hour. He further stated that police had inquired from him and he had told to the police that Ramphal is in 177/1993Adarsh Nagar page7/ possession of the premises in question and his father is away to his native Village. PW2 was cross examined by Ld APP for the State.
12. In his cross examination by Ld APP for the State, PW2 denied the suggestion that he had told to the police that Ayodhaya Prashad had come back from his Village and he found the lock of the premises opened and Badlu and Bhagwan Sahai were in possession of said premises. He denied the suggestion that in his presence accused persons Raj Kumar, Rajinder, Jaswant and Badlu threatened Ramphal and also gave beatings to him. He denied the suggestion that he had seen the incident. He denied the suggestion that he is deposing falsely as he has been won over by the accused persons and he is intentionally not making true statement.
13. In his cross examination on behalf of accused persons, PW2 admitted that Ayodhaya Prashad was working with MCD. He also admitted that Ramphal used to reside in Lal Bagh. He also admitted that wife of Ayodhaya Prashad had already expired.
14. PW3 Sh. Ram Dulare deposed that he do not remember the exact year but the incident took place about 67 years ago and he was residing at H No. 472F, Gali Kumarwali, Azadpur. He 177/1993Adarsh Nagar page8/ further stated that on 27.7.93 Ramphal who used to reside in one room of H No. F472 had gone to his native Village and on 29.7.93 at about 12 Midnight accused persons had broken the lock of the premises in possession of Ramphal and committed theft of household articles of Ramphal and kept their own articles. He further stated that on 4.8.93 when Ramphal returned from his Village he went to his room. He further stated that when Ramphal inquired from the accused persons they started beating him and thereafter Ramphal went to the police station and police inquired from him also.
15. In his cross examination on behalf of accused persons PW3 admitted that Ayodhaya Prashad used to work with MCD and the wife of Ayodhaya Prashad used to reside in Village. He further stated that Ramphal used to work as tailor at Lal Bagh and was having a shop there. He further stated that he do not know if Ramphal was having a house there. He also admitted that Ramphal was also residing at H No. B209, Lal Bagh, GT Karnal Road Indl Area. He further stated that Ramphal had locked the premises and Ayodhaya Prashad had gone to his Village about 22½ months ago.
177/1993Adarsh Nagar page9/ He further stated that his wife had told him about breaking of lock by the accused persons. He further stated that he had not reported the matter to the police as Ramphal was not present. He further stated that he had accompanied Ramphal to the police station on 4.8.93. He further stated that in his presence Ramphal had not produced nor handed over the key of the lock to the police. He further stated that Ramphal had shown ration card to the police. He further stated that police had recorded his statement on the same day at the police station.
16. PW4 SI Ranbir Singh merely proved the FIR i.e. Ex.
PW3/A.
17. PW5 Sh. Ram Lakhan deposed that he know all the accused persons and accused Bhagwan Dass is owner of H No. 472G, Azadpur, Delhi where he was earlier residing as tenant. He further stated that in the year 1987 he had purchased one portion of the said house from accused Bhagwan Dass. He further stated that Ramphal's father was inducted as tenant in one room of the house in question in the year 196970. He further stated that after death of his father Ramphal wanted to grab that room and accused 177/1993Adarsh Nagar page10/ persons wanted to get the said room vacated from Ramphal to which complainant did not agree. He further stated that he was present in the house at the time of incident and saw accused persons beating the complainant and were asking him to vacate the room in question. He further stated that thereafter Ramphal went to the police station and police arrived at the spot. He further stated that thereafter Ramphal started residing at Lal Bagh after locking the room in question and after sometime he found the lock of room broken. He further stated that he do not know who had broken the lock. PW5 was also cross examined by Ld APP for the State.
18. In his cross examination by Ld APP for the State, PW5 admitted that quarrel took place in the year 1993. He further stated that he do not remember whether he had stated to the police that on 27.7.93, Ramphal had gone to his Village after locking the room. He further stated that he do not know whether there were household articles in the said room. He denied the suggestion that he had stated to police that in the absence of Ramphal accused persons had broken the lock of the room and removed all the household articles. PW5 was confronted with his statement recorded by the police. He 177/1993Adarsh Nagar page11/ further denied the suggestion that on 4.8.93 at the time of quarrel accused persons had threatened to kill Ramphal.
19. PW6 Sh. Rama Shankar deposed that he know all the accused persons as they are his neighbours. He further stated that Ramphal was tenant of accused persons who used to reside there with his father and wife. He further stated that accused persons wanted to get the said room vacated from Ramphal and therefore the relations between accused persons and Ramphal were tense. He further stated on hearing the noise when he came out he saw all accused persons beating Ramphal. He further stated that prior to this quarrel Ramphal had gone for his work after locking his room and when he returned in morning he saw the lock was broken and the goods were not there in the room and therefore the quarrel had taken place.
20. PW7 Ct. Nirmal Singh testified that on 6.8.93 he was on patrolling duty alongwith SI Nand Kishore and Ct. Jagdish when the complainant met them and IO recorded his statement. He further stated that IO prepared tehrir i.e. PW7/A and got the case registered through Ct. Jagdish.
177/1993Adarsh Nagar page12/
21. PW8 HC Kanshi Ram testified that on 8.8.93 he was posted at police station Adarsh Nagar and on that day he had joined the investigation of the present case with the IO. He further stated that accused Jaswant was arrested in his presence and the disclosure statement of accused i.e. Ex. PW8/A was recorded. He further stated that few articles were recovered at the instance of accused on 9.8.93 and the same were seized vide memo i.e. Ex. PW8/B. He identified the case property as Ex. P1, Ex. P2 and Ex. P4.
22. In his cross examination, PW8 stated that on 8.8.93 accused Jaswant was taken out from the lockup. He further stated that there was no lock on the house of accused Jaswant and many persons were present inside the house. He further stated that he do not remember whether any neighbours were called at time of taking the articles into possession. He denied the suggestion that no recovery was effected in his presence or that accused persons were falsely implicated in the present case or that the recovery was effected from Pandav Nagar.
23. PW9 Sh. Chimman Lal Arora deposed that on the 7th day of the month perhaps August 1993 he had seen some articles i.e. 177/1993Adarsh Nagar page13/ old TV; picture tube etc. lying outside the house of Bhagwan Sahai and Badlu Ram. He further stated that he has a shop of TV repair at a distance of about 200250 Sq yards from the said house. He further stated that police had asked about the said articles from him. He further stated that he had explained about the articles to the police and police had told him that the said articles belong to the tenant namely Ayodhaya Prashad and were put outside by the owner of the house and the owner of the house had put his articles in the room. He further stated that police had also told to him that they(police) had removed the articles of the owner from the room in question and put the articles belonging to the tenant there. He further stated that no incident took place in his presence prior to the date of incident. PW9 was also cross examined by Ld APP for the State.
24. In his cross examination by Ld APP for the State, PW9 denied the suggestion that tenant Sh. Ayodhaya Prasad and his son Ram Prasad were residing in the house of Bhagwan Sahai and Badlu Ram as tenant. He also denied the suggestion that on 27.7.93 Ramphal and Ayodhaya Prasad had gone to their native place and 177/1993Adarsh Nagar page14/ when they returned on 4.8.93, Ramphal was beaten up by accused Rajender, Raj Kumar, Jaswant and Badlu Ram and was also threatened of being killed. He further denied the suggestion that on 4.8.93 he had seen accused Badlu Ram and Bhagwan Sahai removing the articles belonging to Ramphal and were keeping their own articles. He admitted that the facts as stated by him in his examination in chief was of 7.8.93. He identified some of the articles i.e. part of case property as Ex. P3 collectively as others are in dilapidated condition. He denied the suggestion the he is deposing falsely in order to save the accused persons.
25. In his cross examination, PW9 admitted that Ramphal was residing at Lal Bagh, GTK Road, Azadpur. He denied the suggestion that he is an informer of the police and he had seen the case property in the police station.
26. PW10 SI Nand Kishore testified that on 6.8.93 he was posted at police station Adarsh Nagar and on that day he was on patrolling duty alongwith Ct. Nirmal and Ct. Jagdish at Azadpur Terminal and on the way complainant namely Sh. Ramphal met them. He further stated that he recorded statement of the 177/1993Adarsh Nagar page15/ complainant and prepared rukka i.e. Ex. PW10/A and got the case registered through Ct. Jagdish. He further stated that after registration of the FIR, Ct. Jagdish reached near H No. 472F, Kumarwali Gali, Village Azadpur where he had already reached alongwith the complainant. He further stated that thereafter Ct. Jagdish handed over to him copy of FIR and rukka and he found the room of complainant locked. He further stated that he inquired from 34 neighbours and came to know that Ramphal was residing there for the last about 1516 years alongwith his father Sh. Ayodhaya Prashad. He further stated that he recorded statement of those persons namely Sh. Ram Lakhan, Sh. Ram Dulare, Sh. Kalicharan and Sh. Umashankar. He further stated that on the next day he again visited the said house alongwith HC Rohtash, Ct. Kishan, Ct. Jairam, L/Ct. Kamlesh, L/Ct. Snehlata and L/Ct. Ishwanti and found accused Jaswant sitting on a cot with his mother. He further stated that he asked accused Jaswant to remove the lock and hand over the possession of room to complainant but accused did not paid any heed and the ladies who were present there started creating hindrance in discharge of their duty. He 177/1993Adarsh Nagar page16/ further stated that the lock of the room was broken and possession of room was restored to the complainant. He further stated that the articles belonging to complainant which were removed were seized vide memo Ex. PW9/A and deposited in the malkhana. He further stated that accused Jaswant was arrested and personal search of accused was conducted vide memo Ex. PW10/B. He further stated that on 8.8.93 accused was interrogated and disclosure statement of accused was recorded. He further stated that when accused Jaswant was being taken to Pandav Nagar, accused told that he had given false statement and told that he had concealed the articles at H NO. 43, Village Azadpur and the statement of accused was recorded. He further stated that on the next day accused Jaswant got recovered the articles from H No. 43 and the same were seized vide memo Ex. PW8/B. He further stated that in the evening he received secret information that remaining accused persons namely Badlu, Raj Kumar, Rajender were present at H NO. 43 and thereafter he alongwith staff reached there and apprehended the abovesaid accused persons. He further stated that the said accused persons were arrested and personal search of accused persons were 177/1993Adarsh Nagar page17/ conducted vide memo i.e. Ex. PW10/D and Ex. PW10/E. He further stated that there accused Bhagwan Sahai was formally arrested as he was on anticipatory bail. He further stated that complainant handed over to him copy of ration card, rent receipts and the same were seized vide memo Ex. PW10/F. He further stated that he had also prepared the site plan Ex. PW10/G when he visited the spot for first time at the instance of complainant. He identified the case property as Ex. P1 to P4 collectively.
27. In his cross examination, PW10 stated that the complainant met him at Azadpur Terminal at about 5.00 PM. He further stated that complainant was alone at that time. He further stated that many persons were passing from there and he had recorded the statement of complainant at the spot in his own handwriting. He further stated that no previous complaint of complainant was marked to him for investigation. He further stated that he had collected the rent receipts from the complainant. After going through the file PW10 pointed out that four rent receipts in the name of Sh. Ayodhaya Prasad are on record which are pertaining to the period June '86; JanFeb '87; Jan '91 and JanFeb 177/1993Adarsh Nagar page18/ '92. He admitted that there are no rent receipt for the year 1993 in the name of the complainant. He denied the suggestion that since no person namely Ayodhaya Prasad or the complainant were residing in the said house in the year 1993 therefore, there is no rent receipt for the said year. He denied the suggestion that complainant had vacated the premises in the month of MarApril '92 therefore, there is no rent receipt for the said period also. He further stated that he came to know from the neighbours that the complainant was residing there. He further stated that on 6.8.93 some ladies were present in the H No. 472F, Kumarwali Gali and since no lady constable was available therefore they did not enter the said premises. He further stated that he had recorded the statement of Ayodhaya Prasad on 6.8.93. He further stated that the possession was got restored to the complainant as per procedure u/s. 145 cr.p.c. He further stated that there was no order u/s. 145 cr.p.c. directing him to restore the possession to the complainant. He further stated that he do not know whether he was made a party in the contempt petition filed in the Civil Court. He further stated that on 7.8.93 the complainant was with him for about 5 Hrs. He 177/1993Adarsh Nagar page19/ further stated that he do not know whether it is correct that complainant had appeared in the Civil Court on 7.8.93. He voluntarily stated that he do not remember due to lapse of time. He denied the suggestion that inspite of having knowledge of status qua order, he had restored the possession to the complainant in violation of order. He also denied the suggestion that he had restored the possession in violation of his duties by misusing his powers. He denied the suggestion that accused persons were falsely implicated. He also denied the suggestion that the articles recovered from accused belonged to the accused persons and not to the complainant. He denied the suggestion that complainant was residing alongwith his family in Lal Bagh. He denied the suggestion that he had not conducted the investigation in fair manner.
28. PW11 is HC Kishan Lal and he deposed regarding recording of disclosure statement of accused Jaswant.
29. PW12 HC Rohtash testified that on 6.8.93 he was on patrolling duty alongwith SI Nand Kishore and on that day one person apprised SI Nand Kishore that someone had illegally 177/1993Adarsh Nagar page20/ trespassed and took the possession of his house. He further stated that IO recorded statement of complainant and got the case registered through Ct. Krishan. He further stated that thereafter he alongwith IO and complainant went to the said house and put back the articles of the complainant in the house which were lying outside the house. He further stated that on the next day also he accompanied the IO to the said house where the accused i.e. landlord was present and after arresting the accused persons they were taken to the police station. PW12 further stated that personal search of accused persons were conducted and the memos bears his signatures. PW12 also identified his signatures on seizure memo Ex. PW9/A. He identified the case property as Ex. P1 to P4 collectively.
30. In his cross examination, PW12 stated that complainant met them at Azadpur bus Terminal and thereafter they went to the spot and found the room locked and the goods of complainant were lying outside. He denied the suggestion that the goods were in the same condition as they have been produced in the court. He also denied the suggestion that the fan and cot belonged to accused 177/1993Adarsh Nagar page21/ Bhagwan Sahai. He further stated that the people residing nearby had confirmed that the complainant was residing as tenant in the said premises. He further stated that he do not remember whether they had broken the lock and put back the articles lying outside. He further stated that he do not remember whether the goods lying outside were taken to the police station or was kept in the premises in question. He again stated that the goods were taken to the police station. He denied the suggestion that the accused persons were not arrested in his presence. He further stated that he do not remember the place at which the accused persons were arrested. He denied the suggestion that he had not joined the investigation of the present case with the IO. He denied the suggestion that all the proceedings were done in the police station and he is deposing falsely.
31. Accused persons in their statement u/s. 313 cr.p.c.
recorded in court denied the evidence that has come on record against them. Accused persons had stated that the real tenant was Ayodhaya Prasad and he handed over the possession of his room in July 1993. Accused persons further stated that on 26.7.93 complainant had tried to encroach upon the premises in question 177/1993Adarsh Nagar page22/ and a quarrel took place between the complainant and accused persons. Accused persons examined two witnesses in their defence.
32. DW1 is Sh. Sukhi Ram. He deposed that on 18.7.93 Sh.
Ayodhaya Prasad i.e. tenant of Bhagwan Sahai came from his Village on receipt of notice to hand over the possession of the tenanted premises and he handed over the possession of said room to Bhagwan Sahai in his presence. He further stated that Ex. DW1/A was executed in this regard.
33. In his cross examination by Ld APP for the State, DW1 stated that the distance between his house and the tenanted premises is about 15 yards. He further stated that he was on good terms with Sh. Ayodhaya Prasad. He further stated that he do not remember the name of the person who had written Ex. DW1/A and there were many persons present at that time. He further stated that Sh. Ayodhaya Prasad did not show him the notice which was served upon him. He further stated that Sh. Ayodhaya Prasad had come alone. He further stated that he is having good neighbourly relations with Bhagwan Sahai also.
177/1993Adarsh Nagar page23/
34. DW2 is Bhagwan Sahai. DW2 deposed that Ayodhaya Prasad was his tenant in one room of H No. 472F, Village Azadpur, Delhi for 1520 years before the year 1993. He further stated that Ayodhaya Prasad was an employee of MCD and after retirement in the year 1992 he went to his Village in the month of Sept/Oct '92. He further stated that he waited for him for about 9 10 months and when he did not returned he sent a legal notice for arrears of rent as well as for handing over of possession of tenanted room and the copy of legal notice is Ex. DW2/A. He further stated that thereafter Ayodhaya Prasad came to Delhi and met him on 18.7.93 and told him that he is not in a position to pay the arrears and is ready to vacate the room and he vacated the room. He further stated that he waived the arrears and executed a receipt in this regard and the same is Ex. DW1/A. He further stated that thereafter after about 810 days complainant came to their house and told his brother i.e. Badlu Ram that he will stay in the said room in place of his father. He further stated that his brother did not allowed him and on this complainant gave beatings to his brother and a complaint was made to police station Adarsh Nagar 177/1993Adarsh Nagar page24/ against complainant but no action was taken by police. He further stated that police falsely implicated his brother in the proceedings u/s. 92/93 DP Act. He further stated that complainant had threatened that he will forcibly occupy the room in question and thereafter he filed a civil suit. He further stated that on 7.8.93 he had gone to attend the court and when he returned he found the lock over the said room broken by police. He further stated that complainant was also present in the court on 7.8.93 and copy of plaint was supplied to him. He further stated that thereafter he moved an application for contempt of court and complainant and police were found guilty vide order i.e. Ex. DW2/C and the written statement of complainant is Ex. DW2/D and his replication is Ex. DW2/E. He further stated that thereafter the possession was restored to him by the order of the court and the appeal of the complainant was dismissed as withdrawn vide order dated 25.3.94. He further stated that lateron decree of permanent injunction was passed in his favour vide judgment dated 7.4.00 i.e. Ex. DW2/G. He further stated that the present case is false and they were falsely implicated in the present case.
177/1993Adarsh Nagar page25/
35. In his cross examination by Ld APP for the State, DW2 stated that there are 10 room in H No. 472F and one room was given on rent to Ayodhaya Prasad who used to reside there alone. He further stated that complainant is son of Ayodhaya Prasad who used to reside in Lal Bagh with his family. He further stated that Ayodhaya Prasad had paid the rent till the time he stayed there in year 1992. He further stated that the said room remained locked thereafter. He denied the suggestion that thereafter complainant started staying there. He further stated that Ayodhaya Prasad came to Delhi and met him on 18.7.93 and Ex. DW1/A was executed. He further stated that Ayodhaya Prasad came alone. He further stated that thereafter Ayodhaya Prasad vacated the room and handed over the possession of same to him and he had put his lock on the room. He further stated that complainant came to their house after about 810 days of 18.7.93. He further stated that police had not come to their house when his brother was beaten up by complainant. He further stated that complainant never resided in the room in question after 18.7.93. He further stated that status quo order was dated 7.8.93. He further stated that after filing of the said civil suit, 177/1993Adarsh Nagar page26/ complainant insisted in residing in the said room. He denied the suggestion that complainant was residing with his father in the said tenanted room and even after Ayodhaya Prasad left for his Village complainant continued to live there. He denied the suggestion that he is deposing falsely.
36. Ld APP for the State vehemently argued that on the basis of the testimony of PWs produced and examined by the prosecution in support of its case, the prosecution has proved its case against all the accused persons beyond reasonable doubt and therefore, all accused persons are liable to be convicted in the present case. Ld APP for the State also argued that the testimony of PWs is clear, consistent and the testimony of PW1 i.e. complainant is fully corroborated by the testimony of other witnesses.
37. On the other hand Ld defence counsel argued that the testimony of all the PWs is totally contrary to each other and the same is unbelievable. Ld defence counsel also argued that a civil suit was also pending between the parties and the same was decreed in favour of the accused persons and against the complainant(PW1). Ld defence counsel also argued the the father 177/1993Adarsh Nagar page27/ of the complainant had handed over the peaceful and vacant possession of the room in question to the landlord and therefore the question of trespass into the same does not arise. Ld defence counsel also argued that the complainant never resided in the said room as tenant and all the rent receipts are in the name of the father of the complainant.
38. In the present case charge for offences punishable u/s.
448/380/323/506 IPC was framed against the accused persons. Section 323 IPC provides punishment for voluntarily causing hurt. Section 380 IPC provides punishment for theft in dwelling house etc. Section 448 IPC provides punishment for house trespass. Section 506 IPC provides punishment for criminal intimidation.
39. As per prosecution version PW1 is the complainant/ victim in the present case and the incident(s) was witnessed by PW2, PW3, PW5, PW6 and PW9. To decide the question whether the prosecution has successfully proved its case against the accused persons beyond reasonable doubt or not a thread bare analysis of the testimony of the aforesaid PWs visavis the charge framed against the accused persons is required.
177/1993Adarsh Nagar page28/
40. The case of the prosecution in nutshell is that the complainant was residing in one room of the aforesaid house alongwith his father. As per the prosecution version on 27.7.93 the complainant locked his room and went to his native Village. It is the case of the prosecution that on 4.8.93 at about 8.00 AM the complainant returned back from his Village and found that accused Badlu Ram(since expired) and Bhagwan Sahai had put their goods inside the said room and they were living in the said room. As per the prosecution version the goods of the complainant were not there in the room. It is also the case of the prosecution that the complainant was beaten up by Badlu Ram, Rajender, Jaswant and Raj Kumar @ Lala on 4.8.93. It is also the case of the prosecution that the complainant was threatened of being killed by the accused persons.
41. PW1 in his testimony recorded in court failed to state the date as well as the month of incident. Perusal of the testimony of PW1 also shows that PW1 changed his version in the court. PW1 in his testimony recorded in court deposed that his father was going to his Village and therefore he locked the room which his father 177/1993Adarsh Nagar page29/ took on rent and went to Lal Bagh. PW1 in his testimony recorded in court also stated that on the next day he went back to the said room and found that the lock was broken and some other lock was put on the door. PW1 further deposed that thereafter he called accused Rajender and one Fullu. PW1 also deposed that Fullu assaulted him by means of jharu(broom) and accused Jaswant, Raj Kumar and Rajender assaulted him by means of fist blows. In his testimony recorded in court PW1 deposed that police handed over the possession of the room to him after breaking the lock which was put by the accused persons and he found all the household articles. A bare perusal of the testimony of PW1 recorded in court visavis Ex. PW1/A i.e. statement of complainant recorded by the police shows that there are lot of contradictions between them. In his statement recorded by the police i.e. Ex. PW1/A the complainant(PW1) stated that he had locked the room on 27.7.93 and went to his Village and returned back from the Village on 4.8.93 i.e. After about 66 days. Whereas in his testimony recorded in court PW1 deposed that he had locked the room as his father was going to their Village and on the next day when he came back to 177/1993Adarsh Nagar page30/ the room, he found the lock broken. In Ex. PW1/A, PW1 stated that on 4.8.93 when he came back to his room he found that Badlu Ram and Bhagwan Sahai had put their goods inside his room and they residing in the said room. Whereas in his statement recorded in court, PW1 deposed that when he returned back he found that his lock was broken and some other lock was put on the door of the said room and thereafter he called the accused persons. In Ex. PW1/A, PW1(complainant) stated that his articles like utensils, bed, fan, cycle etc. were stolen from his room. Whereas in his statement recorded in court PW1 deposed that on opening the room, he found all the household alongwith bed, fan, cycle etc. In Ex. PW1/A, PW1(complainant) stated that he was beaten up by Badlu Ram, Rajender, Jaswant, Raj Kumar @ Lala by fist and leg blows. Whereas in his testimony recorded in court PW1 deposed that one Fullu assaulted him with jharu(broom) and accused Jaswant, Raj Kumar and Rajender assaulted him by means of fist blows. The aforesaid comparison between the testimony/ statement of PW1 recorded by the police with his statement recorded in court clearly shows that the same are totally contradictory. Infact there are 177/1993Adarsh Nagar page31/ contradictions in each and every line and the contradictions have made the testimony of PW1 doubtful. It is also pertinent to mention that the witness was able to identify only the cycle and the table fan produced by the MHCm as the case property. The witness failed to identify the remaining case property. No explanation had come from the prosecution regarding the remaining case property. PW1 was not cross examined on the point of remaining case property. It is ironical that PW1 had failed to identify the case property which as per the prosecution case belonged to him.
42. PW1 was cross examined at length by Ld defence counsel and in his cross examination also certain fundamental contradictions have emerged. In his cross examination PW1 deposed that his statement was recorded by the police at the police station. Whereas as per the prosecution case, the statement of complainant was recorded at Azadpur Bus Terminal and not at the police station. IN his cross examination, PW1 deposed that police handed over the possession to him after taking the keys. Whereas in his examination in chief he had stated that the police had handed over the possession of the room after breaking the lock which was 177/1993Adarsh Nagar page32/ put by the accused persons.
43. As per prosecution version PW2 had also witnessed the incident in question. However, a perusal of the examination in chief of PW2 shows that PW2 did not support the prosecution version. In his testimony recorded in court, PW2 deposed that on 27.7.93 he was present at his shop and his wife came there and informed him that a quarrel had taken place between Ramphal and accused persons. As per PW2 he had not visited the place of occurrence. PW2 was cross examined by Ld APP for the State. In his cross examination by Ld APP for the State, PW2 denied the whole prosecution version. PW2 specifically denied that in his presence, the accused persons gave beatings to the complainant and had threatened to kill him. PW2 also denied having made any statement to the police. In his cross examination by Ld defence counsel, PW2 supported the version of the accused persons that the complainant was residing at Lal Bagh. The testimony of PW2 is of no use for the prosecution.
44. PW3 in his examination in chief supported the prosecution version to some extent. However, in his cross 177/1993Adarsh Nagar page33/ examination, he deposed that he had not seen the incident of lock breaking by the accused persons himself and it was his wife who had disclosed/ told him about the lock being broken by the accused persons. In his cross examination, PW3 stated that on 4.8.93 he accompanied Ramphal to the police station and his statement was recorded by the police on the same day and thereafter he did not join the investigation of the present case. PW3 denied the suggestion that his statement was recorded on 6.8.93. The version put forward by PW3 is contrary to the present case. As per prosecution case the investigation of the present case commenced from 6.8.932 and not from 4.8.93. As per prosecution version the complainant(PW1) narrated the whole story to the IO on 6.8.93 at Azadpur Bus Terminal and thereafter the investigation of the present case started. As per prosecution case no investigation was conducted on 4.8.93. Whereas as per PW3, he had accompanied Ramphal to the police station on 4.8.93 and his statement was recorded on the same day and thereafter he never joined the investigation of the present case. The testimony of PW3 is contrary to the version to the complainant as well as to the prosecution case.
177/1993Adarsh Nagar page34/
45. PW5 in his testimony recorded in court failed to tell the date, month or year of the incident. PW5 in his examination in chief deposed that after death of his father, the complainant i.e. Ramphal wanted to grab the room which was taken on rent by hisfather and the accused persons wanted to get the said room vacated. As per PW5 on the day of incident he was present in that house and on hearing the noise of the accused he came out from his room and saw that all the accused persons were giving beating to the complainant and asking him to vacate that room. As per PW5 he intervened in the quarrel and thereafter Ramphal (complainant) went to the police station and after sometime the police came to the spot. As per PW5 thereafter, Ramphal(complainant) started residing at Lal Bagh, Azadpur. The examination in chief of PW5 is also totally contrary to the prosecution story. Consequently, PW5 was also cross examined by Ld APP for the State. In his cross examination PW5 denied the suggestion given to him by Ld APP for the State. PW5 specifically denied the suggestion that in the absence of Ramphal, accused persons had removed all the household articles of the complainant after breaking the lock of the 177/1993Adarsh Nagar page35/ room. PW5 also denied the suggestion that at the time of quarrel, accused persons had threatened to kill Ramphal. The testimony of PW5 is also of no use for the prosecution as PW5 did not support the prosecution version on material particulars.
46. A perusal of the testimony of PW6 shows that PW6 had also supported the prosecution version to some extent. However, a careful perusal of the testimony of PW6 shows that the testimony of PW6 is also a vague one as PW6 also failed to mention the date and month of the incident. As per the testimony of PW6, all the accused persons were giving beating to the complainant. Whereas as per prosecution version accused Bhagwan Sahai did not give any beating to the complainant. PW6 also deposed that prior to the quarrel Ramphal had went to his job after locking the room and when he came back in the morning, he saw the lock was broken and his goods were not there. The same is not the prosecution story. The testimony of PW6 is contrary to the prosecution case as well as to the testimony of PW1. The testimony of PW6 is also contrary to the version given by him to the police. But PW6 was not cross examined by Ld APP for the State nor the material particulars were 177/1993Adarsh Nagar page36/ put to PW6 by Ld APP for the State. Thus, the testimony of PW6 is also very vague and no material particulars were stated by PW6 in his statement recorded in court.
47. PW9 had also not supported that prosecution version.
PW9 in his examination in chief had not stated anything against the accused persons. Infact, PW9 deposed that the police had told him that the owner of the house had put his articles after removing the articles of the tenant. As per PW9 the police told him that they had removed the articles of the landlord/ owner and had again put the articles of the tenant in the room. PW9 had not deposed anything regarding the presence of other witness at the spot. The testimony of PW9 is also not inculpatory qua the accused persons. PW9 was cross examined by Ld APP for the State and in his cross examination PW9 denied the suggestion that the complainant was residing as tenant in the house of accused persons alongwith his father. In his cross examination by Ld APP for the State, the whole prosecution story was put to PW9 but PW9 denied the whole prosecution story. PW9 denied the suggestion given to him by Ld APP for the State that the complainant was beaten up by the 177/1993Adarsh Nagar page37/ accused persons.
48. The testimony of PW4 is of formal nature as he was working as duty officer on the relevant date and time and he merely proved the FIR. The testimony of PW7 is also of formal nature. PW8 deposed regarding recovery of some articles at the instance of accused Jaswant on 9.8.93. As per seizure memo Ex. PW8/B, one cycle, one bed, one bucket, one table fan and some other household articles were recovered at the instance of accused Jaswant. However, it is pertinent to mention that PW1 i.e. the complainant had failed to identify most of the articles in the court. There was not distinct identification mark on the said articles and as per testimony of PW1, the said articles were easily available in the market. The IO as well as PW8 had not made any effort to join the complainant or local residents in the investigation at the time of recovery of the said articles. IN his cross examination PW8 admitted that there was no lock on the house of accused Jaswant and many persons were present inside the said house. No judicial TIP of the recovered articles were got conducted by the IO in the present case. Hence, the recovery of the articles as well as their 177/1993Adarsh Nagar page38/ identification is doubtful.
49. PW10 i.e. the IO deposed regarding investigation conducted by him in the present case. The testimony of PW10 is very lengthy one. In his lengthy testimony PW10 deposed regarding registration of the case on the statement of complainant; arrest of accused persons; recovery of some articles etc. The cross examination of PW10 is also very lengthy one and the testimony of PW10 is basically with respect to the investigation carried out by him.
50. PW11 merely deposed regarding disclosure statement of accused Jaswant on 8.8.93. PW12 had accompanied the IO during the investigation of the present case. However, testimony of PW12 is contrary to the testimony of police officials including the IO. As per the testimony of PW12, all accused persons ere arrested on 6.8.93 itself. PW12 was cross examined by Ld APP for the State and certain documents were shown to PW12 and on being shown the said documents, PW12 identified his signatures on the said documents. PW12 in his cross examination by Ld APP for the State stated that he do not know whether the articles of the 177/1993Adarsh Nagar page39/ complainant were seized or not.
51. DW1 i.e. Sh. Sukhiram deposed that on 18.7.93, Sh.
Ayodhya Prasad i.e. tenant of accused Bhagwan Sahai came back from his Village and handed over the possession of one room to Bhagwan Sahai in his presence and one document i.e. Ex. DW1/A was also executed in this regard and the same bears his signatures at point A and that of tenant at point B. DW1 was cross examined by Ld APP for the State and in his cross examination, DW1 stated that he do not remember the name of the person who had written Ex. DW1/A. DW1 voluntarily stated that it was written before him. Certain other questions were put regarding document i.e. Ex. DW1/A. However, perusal of cross examination of DW1 clearly shows that signatures of Ayodhya Prasad and that of DW1 were not disputed and even the execution of the document i.e. Ex. DW1/A has not been challanged.
52. DW2 is the accused Bhagwan Sahai himself. DW2 in his testimony recorded in court deposed that one Sh. Ayodhya Prasad was his tenant since 1520 years before 1993. As per DW2, he had sent a legal notice Ex. DW2/A to the father of the complainant and 177/1993Adarsh Nagar page40/ on receipt of the legal notice he came to Delhi and handed over the vacant physical possession of the tenanted room to DW2. DW2 also proved the possession letter i.e. Ex. DW1/A. As per version of DW2 the complainant had come to their house and had beaten Sh. Badlu Ram i.e. elder brother of DW2 and also one of the accused(since expired) in the present case. DW2 also deposed regarding the complaint made by his brother in police station Adarsh Nagar also about the civil suit pending between the parties. DW2 also deposed that the civil suit between the parties was decreed in his favour and the certified copy of the judgment dated 7.4.2000 is Ex. DW2/G. In his cross examination, DW2 stated that the document Ex. DW1/A was in his handwriting. DW2 was cross examined at length but in the lengthy cross examination, no material contradictions/ any favourable to the prosecution could be culled out. The testimony of DW2 is clear, consistent and inspire confidence.
53. It is also pertinent to mention that as per prosecution version, the offences in question were committed between 27.7.93 and 4.8.93. However, the complainant made the complaint to the 177/1993Adarsh Nagar page41/ police on 6.8.93 i.e. after about two days. NO explanation has come from the complainant or from the prosecution regarding the delay in reporting the matter to the police. It is also pertinent to mention that the complainant had neither gone to police station Adarsh Nagar to lodge the complaint nor made a call at 100 number. As per prosecution version, the complainant met the IO in front of Azadpur Bus Terminal and got his statement recorded. These facts also create some suspicion in the prosecution version.
54. It is also pertinent to mention that the complainant failed to produce any rent receipt for the year 1993. All the rent receipts produced by the complainant were pertaining to year 1992 and prior to that. It is also pertinent to mention that all the rent receipts were in the name of father of the complainant and no rent receipt was issued in favour of the complainant. These facts also support the version of the accused persons. It is again reiterated that the civil suit which was pending between the parties was decreed in favour of accused Bhagwan Sahai and against the complainant.
55. Thus, the culmination of the discussion made hereinabove is that the prosecution is not able to prove its case 177/1993Adarsh Nagar page42/ against the accused persons beyond reasonable doubt. The testimony of PW1 though inculpatory qua the accused persons is contradictory to the prosecution case and is silent on material particulars and is not sufficient to prove the prosecution case beyond reasonable doubt. The other material witnesses i.e. PW2, PW3 and PW9 have not supported the prosecution version. The testimony of PW5 and PW6 is also very shaky and vague one and the same cannot be used even for corroborative purposes. All the said public witnesses have putforth their own version which is not consistent with the prosecution case. The testimony of police officials and the alleged recovery of stolen articles at the instance of accused Jaswant is also not sufficient to convict the accused persons in the present case as the complainant failed to identify most of the articles seized by the IO. Even the testimony of the police officials is contradictory to each other. The glaring contradictions in the testimony of PWs have made their testimony unreliable. The accused persons were successful to prove their defence. It is settled proposition of law that the prosecution is required to prove its case against the accused beyond reasonable 177/1993Adarsh Nagar page43/ doubt and the accused persons are required to prove their defence on preponderence of probabilities. The burden upon the prosecution is heavier than as compared to the accused.
56. Hence, all accused persons are hereby acquitted in the present case.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 4th of August, 2012 MM:NW05:ROHINI:DELHI.
177/1993Adarsh Nagar page44/
177/93 AN
4.8.12
Present: Ld APP for the State.
Accused Badlu Ram had already expired.
Other 4 accused persons are present on bail
alongwith Ld counsel.
The case is today fixed for order/ judgment.
Vide my separate judgment of even date announced in open court today, all 4 accused persons are hereby acquitted in the present case. Bail bonds are cancelled. Sureties are discharged. Original documents, if any of sureties on record be returned after cancellation of endorsement thereon. File be consigned to record room after necessary compliance.
DEEPAK DABAS
MM:NW05:DELHI:4.8.12
177/1993Adarsh Nagar page45/