Delhi District Court
State vs . Subodh Tyagi on 3 June, 2013
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 103/98
U/S: 447/34 IPC
P.S: TIMAR PUR
STATE VS. SUBODH TYAGI
:JUDGMENT:
Sl. No. of the case 319/2
Date of commission of offence 18.02.1998
Name of the complainant Sh. Rajeev Sharma
Patwari and Sh. Ved Ram
Kanoongo, Village Burari,
Tehsil Tis Hazari, Delhi.
Name, parentage and address 1. Subodh Tyagi
of the accused. S/o Sh. Sukhbir Singh
R/o Village Burari, Delhi.
2. Rishal Singh
S/o Neki Ram
R/o Garhi Burari, Delhi.
FIR No. 103/98 1/10
STATE VS. SUBODH TYAGI & ORS.
3. Balbir Singh
S/o Sh. Jug Lal
R/o Garhi Burari, Delhi.
Offence complained off U/s 447/34 IPC
Plea of accused Pleaded not guilty
Final order Acquitted
Date of order 03.06.2013
Date of final arguments heard 03.06.2013
BRIEF FACTS AND REASONS FOR DECISION :
1. The story of the prosecution in brief is that on 18.02.1998 at unknown time it was reported by the Patwari Rajeev Sharma and Kanoongo Ved Ram during inspection they found illegal encroachment upon land of four biswa in Khasra No. 148 situated within the Lal Dora of Garhi Burari belonging to Gram Sabha. It was alleged that Rishal Singh has trespassed the said land and constructed one room over it. The hoarding of M/s Subodh Builders was also found affixed on the said land. One room was also constructed by accused Balbir Singh. Thereby accused Subodh Tyagi, Rishal Singh and Balbir Singh were thereby booked for the offence punishable u/s 447/34 of IPC.
2. That after completion of investigation the challan against all the FIR No. 103/98 2/10 STATE VS. SUBODH TYAGI & ORS.
accused persons was filed on 28.01.1999 and accused were summoned. The notice u/s 251 of Cr.PC was issued against all the accused persons on 11.05.2000 to which they pleaded not guilty and claimed trial.
3. That in order to prove their case the prosecution has examined only 5 witness in the present case.
4. The PW1 Sh. Ved Ram has deposed that in the year 1998 he was Kanoogo at village Burari. He alongwith Rajeev Verma Patwari reported about the encroachment on the land of Gram Sabha by Subodh Kumar who had mounted his board. They had also reported about the illegal possession by Rishal Singh at Khasra No. 148 the land belonging to Goan Sabha. His report in this regard is Ex. PW1/A. The same was given to the police chowki. He had given shizra of Khasra No. 148 for which the matter was reported Ex. PW1/B. He had also given to police, copy of Khatoni of Khasra No. 148 is Ex. PW1/C. Later on they had demolished the structures raised by Rishal Singh. The police had inquired from him about the encroachment. Thereafter he was cross examined on behalf of Ld. APP for the State.
5. The PW2 Sh. Rajeev Sharma is the Patwari who has deposed that in the year 1998 he was Patwari in the Tehsil Civil Lines, Halka Burari. In Khasra No. 148 towards Garhi side one Rishal Singh had constructed a house. The aforesaid Khasra No. 148 is of Goan Sabha Jhore. In the same Khasra number on the eastern side towards firni Subodh FIR No. 103/98 3/10 STATE VS. SUBODH TYAGI & ORS.
Builders had constructed house/shop. He had taken rough demarcation regarding Khasra No. 148 in order to ascertain if the land on which the construction was raised as mentioned above falls in Khasra No. 148 or not. The report was asked from Ved Ram Kanoongo who verified the building as falling under the same Khasra number. He alongwith Kanoongo Ved Ram went to Police Post Burari with a written complaint Ex. PW2/A and gave the same in the chowki. He has not written anything else in this complaint. He has not written the names of owners of Subhodh Builders. He know Rishal Singh. Thereafter he was cross examined by Ld. APP for the State.
6. The PW3 SI Mahipal Singh is the IO who has deposed that on 18.02.1998 he was posted at Police Post Burari. On that day, the case was marked to him by I/C Police Post Burari. On 27.02.1998 he made the endorsement on the complaint vide Ex. PW3/A and the same was handed over to Ct. Sanjay for registration of the case. Thereafter Ct. Sanjay came back at Police Post and handed over him the copy of FIR and original rukka. On 03.04.1998 he obtained the site plan of Gram Sabha land from Kanoongo Sh. Ved Ram and the same was seized by him vide seizure memo Ex. PW3/B and site plan is Ex. PW1/B. The photographs of Gram Sabha Land were got taken through private photographer vide photographs mark A1 to A5. Thereafter he prepared the challan under the supervision of the SHO, Police Station Timar Pur.
7. The PW4 Ct. Sanjay Kumar has deposed that on 27.02.1998 he was FIR No. 103/98 4/10 STATE VS. SUBODH TYAGI & ORS.
posted at Police Post Burari, Police Station Timar Pur. On that day, ASI Mahipal Singh came at the Police Post Burari and gave him a rukka and instructed him to go to Police Station Timar Pur alongwith the rukka for registration of the case. Accordingly, he went to the Police Station Timar Pur and got the FIR registered. IO recorded his statement.
8. The PW5 Jai Prakash is the photographer who has deposed that in the year 1998, he was called by the IO and accordingly he went to the spot at Burari Garhi, Village Burari to take photographs of the spot. As he reached at the spot, he clicked the photographs on the direction of IO of the spot. He has given the negatives to the IO. The photographs are Ex. P5A.
9. That on 17.12.2012 the prosecution evidence was closed as the matter was since pending since 2000 and prosecution failed to produce all the material witnesses despite number of opportunities. That on 05.03.2013 after the conclusion of prosecution evidence the statement of accused namely Subodh Tyagi, Rishal Singh and Balbir Singh u/s 313 r/w Section 281 Cr. PC was recorded. Accused denied all the allegations which has been levelled against them. The accused Rishal Singh and Balbir Singh stated that their houses are situated in the Lal Dora and the same are not in the Khasra No. 148. Similarly, accused Subodh Tyagi stated that he is operating his office on his own land situated at Khasra No. 18/3 of village Burari. The defence evidence was not led by the accused persons.
FIR No. 103/98 5/1010.I have heard the Ld. APP for the State, Ld. counsel for accused persons Sh. B S Yadav and gone through the record.
11.The material allegation which has been levelled against all the accused is encroachment/trespassing upon the Gram Sabha land at Village Burari in Khasra No. 148. The only question which is disputed in the present case as to whether the houses/offices of accused persons falls in Khasra No. 148 or some where else as claimed by them. The material witnesses examined by the prosecution are PW1 and PW2. Both of them are the revenue officials on whose complaint the present FIR was registered. The PW2 is the Patwari who has deposed on the lines of his earlier statement Ex. PW2A. The cross examination of the both the said witnesses is relevant so as to appreciate their evidence. The PW2 in his cross examination stated that the factum of demarcation report being prepared was not mentioned in their complaint. He further admitted that he had not given the copy of demarcation report of the land in question to the IO. He further stated that the demarcation report always remain with the Kanoongo. He further in his cross examination categorically admitted that the demarcation report only can tell as to whether a piece of land or a structures falls within a particular Khasra or not. He further admitted that the said encroachment has not been shown in Shizra Ex. PW1/B.
12.The cross examination of PW1 is also material so as to find out as to FIR No. 103/98 6/10 STATE VS. SUBODH TYAGI & ORS.
whether there was encroachment upon the Gram Sabha land. He also admitted that the demarcation report is necessary so as to locate the situation of particular Khasra number and things attached to it. He admitted that no demarcation report was given to the IO. He also admitted that in the Shizra Ex. PW1/B the encroachment has not been shown. Therefore in the present case even though the revenue officials themselves admitted that the demarcation report is necessary so as to find out as to whether the encroachment falls within a particular Khasra, but the same was neither supplied by them nor produced in the Court during their testimonies. The importance of demarcation report has also been admitted by the IO PW3 who in his cross examination admitted that he asked the PW1 and PW2 for the same. But they refused to provide it. He also admitted that the demarcation report is only the way through which it can be found that the particular house or office falls within a particular Khasra number as alleged in the present case. But it is surprising even though the IO knew that demarcation is necessary, but even then made no effort was made to conduct it during investigation. Nor any written request was made by him to the SDM concerned for conducting the same.
13.The only document which has been supplied by the revenue official is the Shizra Ex. PW1/B of land in Khasra No. 148 village Burari. The said document is devoid of any details of any encroachment. The IO in the present case never prepared any site plan and merely relied upon the said Shizra. The said Shizra thus does not prove as to the locations of the encroachments as alleged by the prosecution. The FIR No. 103/98 7/10 STATE VS. SUBODH TYAGI & ORS.
defence which has been taken by the accused persons is also quite probable. The accused Rishal and Balbir stated that their houses are within the Lal Dora of the village and not within the Khasra No. 148. The PW1 explained the meaning of Lal Dora land as Abadi deh Land in his cross examination. He further stated that the Khasra No. 147 of Garhi Burari is of Lal Dora land and is adjacent to Khasra No. 148. The place of occurrence as shown in the FIR is quite relevant in this regard. It has been shown as Abadi Lal Dora Garhi Burari. Thus the said endorsement on the FIR at place of occurrence is in contradiction to the story of the prosecution as PW2 stated that the Lal Dora Land of Village Garhi Burari falls in Khasra No. 147. The cross examination of PW3 is also probalizes the defence of accused that their houses and offices were constructed on the said land for the last many years. The PW3 admitted that the houses in question were quite old. On the other hand PW2 in cross examination stated that he came to know about the said construction only two months back through oral complaints of the villagers. The said contradictions raises doubt as to the story of the prosecution and the testimonies of the PW1 and PW2 to be unreliable. In view of the same, it cannot be observed in absence of demarcation report that encroachment as alleged by prosecution falls within Khasra number 148, Burari .
14.The Ld. counsel for accused persons also argued that no case of encroachment is made against them on legal grounds as laid down in Section 84 (II) of Delhi Land Reforms Act, 1954. To support his argument he has also relied upon the Judgment of Hon'ble Delhi High FIR No. 103/98 8/10 STATE VS. SUBODH TYAGI & ORS.
Court in Criminal Revision No. 1042 of 2002. The said Judgment is perused. Para No. 2 and 4 are quite relevant and are applicable in the present case. The Hon'ble High Court held that the proceedings u/s 447 IPC can be lodged with respect to agriculture land only when the decree of eviction is passed u/s 84 (II) of the D L R Act. That subsequent to the passing of the decree, the delinquent if reattempts to enter into the said land only then he can be tried for the offence. In the present case in hand, admittedly the land in question is agriculture land governed by the DLR Act. The eviction proceedings in the present case as per the record were never instituted against the accused persons nor any decree in terms of Section 84(II) was passed against them. Therefore the accused persons were not liable for encroachment of agriculture land, if any for the want of decree of eviction.
15.In view of the above stated reasons, I am of considered opinion that prosecution has failed to discharge its burden of proving its case beyond reasonable doubt and there are sufficient doubts in the case of the prosecution. The benefit for the same has to be given to the accused persons. In view of the same, accused Subodh Tyagi, Rishal Singh and Balbir Singh are acquitted u/s 447/34 of IPC. Bail bond and surety bond stands discharged.
(Announced in the open court)
Dated: 03.06.2013 (GAGANDEEP SINGH)
MM07/CENTRAL
TIS HAZARI : DELHI
FIR No. 103/98 9/10
STATE VS. SUBODH TYAGI & ORS.
CC/FIR No. 103/98
P.S. TIMAR PUR
STATE VS. SUBODH TYAGI & ORS.
03.06.2013
Present: Ld. APP Sh. Manan Munjal for the State.
All accused in person on bail.
Sh. B S Yadav Ld. counsel for accused Rishal Singh and Balbir Singh.
Final arguments heard.
Vide my separate detailed judgment of the even date the accused Subodh Tyagi, Rishal Singh and Balbir Singh are acquitted for the offence u/s 447/34 of IPC. Accused wishes to adopt bail bond and surety bond. Previous bail bond and surety bond stands adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned to record room.
(GAGANDEEP SINGH) MM07/CENTRAL/DELHI 03.06.2013 FIR No. 103/98 10/10 STATE VS. SUBODH TYAGI & ORS.