Delhi District Court
State vs Devi Pd. Kukreti Etc on 25 August, 2023
IN THE COURT OF SH. DEEPAK KUMAR-1,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
-01, TIS HAZARI COURT, CENTRAL : DELHI.
State Vs. Devi Prasad Kukreti Etc.
FIR No. 94/2009
PS: Karol Bagh
Date of Institution of case: 07.12.2010
Date of Judgment reserved: 18.08.2023
Date on which Judgment pronounced: 25.08.2023
(a) Sr. No. of the case 292298/2016
(b) Date of offence 03.11.2008
(c) Complainant Mahender Kumar, S/o- Sh. Shri
Prasad, R/o- 285/2, Than Singh
Nagar, Gali No. 2, Anand Parbat,
Delhi-54.
(d) Accused (1) Devi Prasad Kukreti, S/o- Sh.
Dharmanand Kukreti, R/o- T-1946,
Parvati Harihar Mandir, Ashoka
Pahari, Jhandewalan, DBG Road,
Delhi.
(2) Dinesh Kumar Kukreti, S/o-
Sh. Dharmanand Kukreti, R/o- T-
1946, Parvati Harihar Mandir,
Ashoka Pahari, Jhandewalan, DBG
Road, Delhi.
(e) Offences Under Section 341/451/454/34 of
The Indian Penal Code, 1860.
(f) Plea of accused persons Pleaded not guilty.
(g) Final Order ACQUITTED
CASE No. 292298/2016
FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 1/ 38
PS- Karol Bagh
JUDGMENT
1. Vide this judgment, I shall decide the final outcome in the FIR No. 94/09, registered at Police Station, Paharganj, wherein alleging the commission of the offence punishable under Sections 341/451/454/34 of The Indian Penal Code, 1860 (shall be referred to as 'IPC' in short).
PROSECUTION CASE
2. The prosecution case, in brief, is that on 03.11.2008 at shop No. T-1864/2, DBG road, Jhandewalan, near Naaz Cinema, within the jurisdiction of PS: Karol Bagh, both the accused persons namely Devi Prasad Kukreti and Dinesh Kumar Kukreti, in furtherance of common intention, committed house trespass in the aforesaid shop, belonging to complainant Mahinder Kumar Chaurasia, in order to restrain the complainant to enter into the above-said shop and also wrongfully restrained the complainant to enter into the said shop. Thereafter, in the night of 05/06.11.2008, at the abovesaid shop, both the accused persons, in furtherance of their common intention, committed house breaking by entering into the said shop belonging to complainant, after breaking the lock of the complainant, in order to restrain the complainant to enter into the said shop and also wrongfully restrained him from entering the said shop and both thereby committed the offences punishable under Sections 341/451/454/34 IPC. Statement of the complainant was recorded and the instant FIR was registered.
3. Upon completion of investigation, charge-sheet was filed in the Court on 07.12.2010, against both the accused persons for CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 2/ 38 PS- Karol Bagh the alleged commission of the offences punishable under Sections 341/451/454/34 IPC.
4. After taking cognizance, the accused persons were supplied with the copy of the charge-sheet on their appearance before the Court.
CHARGE
5. On 04.06.2013, charge was framed against both the accused persons for the alleged commission of the offence punishable under Sections 341/451/454/34 IPC to which they pleaded not guilty and claimed to be tried. Therefore, further proceedings were carried out to record the evidence of the prosecution. To prove its case, prosecution has examined 09 witnesses.
PROSECUTION EVIDENCE
6. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimonies of the prosecution witness as well the defence witnesses.
7. PW1 Mahender Kumar deposed that in the year 1999, one shop No. T-1864/2, DBG road, near Naaz Cinema, Jhandewalal, New Delhi was being sold by one Shahid Ali, S/o- Liyakat Ali, however, Shahid Ali did not want to sell the said shop to him as his uncle was running a shop of auto repairing beside the aforesaid shop and PW1 also wanted to start the same business. Accused Dinesh Chand Kukreti was his good friend and told PW1 that the shop might be purchased in name of CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 3/ 38 PS- Karol Bagh Dinesh Chand Kukreti and PW1 shall make the payment. Thereafter, the said shop was purchased in the name of accused Dinesh Chand Kukreti and accused told that after sometime, he shall transfer the said shop in the name of PW1. The said agreement/ conversation between the accused and PW1 was written on a plain paper. Thereafter, in year 1999, he started his business of auto repairing from the aforesaid shop. In year 2003, on the request of accused Dinesh Chand Kukreti, he allowed accused for running STD shop in a space measuring about 2 feet at the aforesaid shop. From 02.04.2006, accused Dinesh Chand started harassing and abusing him and usually beat his labour at the aforesaid shop and obstructing his work. On 02.04.2006, he made call on 100 number and police officials reached at the spot and recorded his statement as well as statement of accused Dinesh Chand, Ramesh Chand and Khalesh Chand. One of the keys of the aforesaid shop was in his possession and the other was in the possession of accused Dinesh Chand. Thereafter, police officials prepared Kalandra against accused Dinesh Chand, Ramesh and Khalesh Chand and all of them stated before the Special Executive Magistrate that they will not harass PW1 or his labours in future. Witness further deposed that on 03.11.2008, accused Dinesh Chand, Ramesh Chand and Khalesh Chand again called some anti-social elements at the aforesaid shop and gave beatings to him and his labours with the help of 10-15 persons. He again called on 100 numbers and went to PS- Karol Bagh where he gave written complaint. Accused Dinesh Chand, Ramesh Chand and Khalesh Chand, Puppy Singh and several other persons whose name he does not remember, stated in the police station that they will never harass him in future.
CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 4/ 38PS- Karol Bagh Thereafter, they compromised and PW1 came back at his aforesaid shop and started working as usual. Thereafter, on the intervening night of 05-06.11.2008, accused Dinesh Chand, Ramesh Chand, Khalesh Chand, Puppy Singh and other persons broke the shutter of his aforesaid shop and stole all the belongings including documents of one motorcycle and motor parts lying inside the shop. One motorcycle which was lying in the shop, was also thrown outside the shop by the accused persons. On 06.11.2008, at about 6.00 am, one of his neighbor Deepak had informed him that shutter of his aforesaid shop had been broken and all his belongings were scattered outside the shop. Thereafter, he reached his shop and saw all his belongings scattered outside the aforesaid shop and several items were stolen. PW1 made call on 100 number and ASI Deshpal from PS- Karol Bagh reached the spot and photographs of the spot were also clicked. After clicking the photographs of the spot, witness went to Police Station alongwith ASI Desh Pal. PW1 also gave written complaint to ASI Desh Pal and ASI Desh Pal as well as SHO assured him to take action against the accused persons. He remained in the police station from 8.00 am to 10.00 pm on the assurance by the police that they could open his shop which was locked by the accused persons. IO Rajesh Shah told him that he will register FIR against the accused persons U/s 406/448/506/34 IPC. After 10.00 pm, IO Rajesh Shah told him that it is late night, so his shop will be get opened by them in the morning. Thereafter, on 07.11.2008, he went to PS- Karol Bagh but no action was taken by the police regarding the present case. Thereafter, PW1 went to DCP office and narrated the whole case to the then DCP, who noted down the whole fact on his note and CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 5/ 38 PS- Karol Bagh also put seal on it and handed over to him. Thereafter, PW1 went to SHO PS- Karol Bagh alongwith the sealed copy of the DCP. SHO did not take any action and kept on giving false assurance to him. Thereafter, he made complaint in the Court Ex. PW1/A, on the basis of which, FIR was lodged in the present case on the directions of the Court. Since his shop was locked, he started his work on foothpath, in front of his shop. He further deposed that till today, he is still working on the footpath in front of aforesaid shop and whenever he asked police to open the said shop, police used to tell him that as the said shop had been sealed as per direction of Court so the said shop will be opened only after the direction of the Court. Site plan Ex.PW1/B was prepared at his instance. He also handed over photocopies of documents related to the said shop which were seized vide seizure memo Ex.PW1/C. Those documents include photocopies of mutual agreement mark A, tax receipts MCD, mark B (running into 7 pages), documents related to address, mark C (running into 4 pages), receipt of MCD challan, mark D(running into 3 pages). Some documents related to the shop were inside the shop and the said document were taken out from the said shop as per the order of the Court after desealing the said shop. These documents include photocopy of General Power of Attorney executed by accused Dinesh Kukreti in his favour dated 11.9.2000, photocopy of agreement to sell between him and accused Dinesh Kukreti dated 11.9.2000 alongwith affidavit, receipt, possession letter, and deed of WILL (all dated 11.9.2000). These documents were seized by the police vide seizure memo Ex.PW1/D and accused Dinesh Kumar Kukreti and Devi Parsad put their signatures in his presence at point B and C respectively and kept in a plastic CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 6/ 38 PS- Karol Bagh box. The keys, after locking the said shop, were seized by the police vide seizure memo Ex. PW1/E. Accused Dinesh Kumar Kukreti and accused Devi Parsad put their signature in his presence at point B and C respectively. Thereafter, on 23.12.2010, accused persons alongwith Ramesh Chand, Khalesh Chand and Madhu, came to his shop which was on the footpath and gave beatings to him and his staff and caught hold from his back and gave poison in his mouth. Khalesh Chand hit him on his head with tool box due to which he became unconscious. His staff made a call at 100 number and police came at the spot and took him to the hospital. He remained at the hospital whole night. Ram Kumar Rao and Ram who were known to him, were also present at the hospital. He also gave application U/s 200 Cr.P.C in the Court with respect to abovesaid incident. Thereafter, on 02.10.2012, between 11-12 afternoon, accused persons had sent 5 goons at his shop alongwith one police official of Delhi Police. All those persons broken the lock of his shop and kept one stolen motorcycle in his shop. The said motorcycle was having different registration number in the front and the rear. His known Ram Kumar Rai made a call at 100 number and police came at the spot. All the goons alongwith police official were taken to the Police but no action was taken by the police in this regard. Thereafter, police officials locked the said shop with their own lock and the said theft/ stolen motorcycle was taken out from the said shop. Till date, his shop is locked with the lock of police. Two days prior to 02.10.2012, all the five goons came at his shop in a car and shown him a pistol and threatened him by saying that "agar dukan nahi khali karoge to anjam bura hoga or goli maar denge". Those goons also threatened him by saying CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 7/ 38 PS- Karol Bagh that "case wapas le lo nahi to mai goli maar donga". He had given complaint regarding the abovesaid incident but police had taken no action.
8. PW2 Raju deposed that he is running an egg shop at Naaz Cinema for many years and Mahender Kumar was his neighbor, who was working as mechanic in his shop adjoining of his house. In the shop of Mahender Kumar, there were two helper who used to open lock of shop. Dinesh Kumar Tiwari had put his lock on the shop of Mahender Kumar and Mahender Kumar was not allowed to enter in the shop by Dinesh Kumar Tiwari. He further deposed that he does not know the exact date and time when the lock was put by Dinesh Kumar Tiwari but later, the said shop was converted into STD shop, run by Devi Prasad with help of Dinesh Kumar Tiwari.
On being asked one leading question by Ld APP for the State, PW2 stated that in the year 2008, lock was put on the shop of Mahender by the accused persons but he does not remember the exact date and month as he is illiterate.
9. PW3 ASI Vinod Kumar deposed that on 14.07.2009, he was posted at PS- Karol Bagh as DO and his duty hours were from 8.00 am to 04.00 pm. Based on rukka received from SI Ramesh Kumar Singh, he got registered FIR Ex. 3/A (OSR). The FIR was registered using computer systems and specially designed software installed at PS which does not allow any alteration or deletion after feeding of date. He further certified that during the period the FIR was registered, computers installed at PS were under his lawful control and Ex. PW3/B is a computer CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 8/ 38 PS- Karol Bagh output based upon the information fed into the computer in ordinary course of the said activities and is free from any error on account of failure or malfunctioning of the computer. He handed over the copy of FIR to SI Ramesh Kumar and made endorsement Ex. PW3/C on the tehrir to this effect.
10. PW4 Radha Raman Sharma deposed that he has been working as Manager in a gift item, manufacturing company namely Excel Product since 1996 till date. For doing his job, the company had provided him one scooter which he used to visit the shop of the complainant namely Mahender Kumar Chaurasiya at 1864/2, Deshbandhu Gupta Road, for repairing and other mechanical work related with his scooter. Till 2008, he used to visit the said shop of Mahender Kumar Chaurasiya for the repairing and other mechanical work related with his scooter. After 2008, he came to know that police had locked the said shop of Mahender Kumar Chaurasiya due to which, Mahender Kumar Chaurasiya used to do his work on footpath outside the said shop. After sometime, he came to know that Mahender Kumar Chaurasiya has some dispute with his friend namely Dinesh with respect to the said shop.
11. PW5 Dinesh deposed that he is doing the work of "flower and parsad" at shop no. 132-133, Gate no. 2, Janta Market, Jhandewalan Mandir. He knows accused Dinesh Kumar Kukreti and complainant Mahender Kumar Chaurasiya for the last 25-27 years. 24-25 years ago, Mahender Kumar Chaurasiya had a shop near Naaz Cinema Hall. Thereafter, Mahender Kumar Chaurasiya had took a shop at 1864/2 Naaz Cinema. Mahender Kumar CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 9/ 38 PS- Karol Bagh Chaurasiya had paid money for the shop at 1864/2 but the owner of the shop at 1864/2 was not handing over possession of the said shop to Mahender Kumar Chaurasiya. Thereafter, Mahender Kumar Chaurasiya asked for his help for the possession of the said shop. Mahender Kumar Chaurasiya was mechanic at the said shop. Both Mahender Kumar Chaurasiya and Dinesh used to sit at the said shop. Dinesh had also set up one STD Booth at the said shop and Mahender Kumar Chaurasiya was running his mechanic shop. The brother of accused Dinesh used to sit at the said shop. He identified the brother of Dinesh who used to sit at the said shop in the Court and he can identify by his face as he does not remember his name. Thereafter, some dispute arose between Mahender Kumar Chaurasiya and Dinesh. Dinesh had locked the said shop. Thereafter, Mahender Kumar Chaurasiya had also locked the said shop. Thereafter, police also came and locked the said shop.
12. PW6 ASI Amit Kumar deposed that on 10.06.2010, he joined investigation of the present case alongwith IO/ SI Ramesh and went to Jhandewalan Bus Stands, Delhi where accused Devi Prasad Kukreti met. After interrogation, accused Devi Prasad was arrested and personally searched by the IO vide memo Ex. PW6/A and Ex. PW6/B. After interrogation, accused was released on furnishing bail bond as offence was bailable. Thereafter, he alongwith IO returned to police station and IO recorded his statement U/s 161 Cr.P.C.
13. PW7 Bans Raj Shukla deposed that he was working in Royal Glass Company at T-506, near Naz Cinema, Jhandewalan, CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 10/ 38 PS- Karol Bagh since 1996 and worked till year 2011. As he was having a scooter shop for the purpose of mechanic work/ repair of the said scooter. He used to visit the shop of Mahender Kumar Chaurasiya. As the shop of Mahender Kumar Chaurasiya was near to his office, he used to visit his shop for the repairing of his scooter whenever he required. Mahender Kumar Chaursiya wanted to purchase the shop at T-1864/2, but the owner of the said shop did not want to sell the said shop to Mahender Kumar Chaurasiya as the owner of the shop of T-1864/2 and Mahender Kumar Chaurasiya were worked in same profession. Thereafter, shop was purchased by Mahender Kumar Chaurasiya but the papers were prepared in the name of Dinesh Kukreti. Thereafter, accused Dinesh Kukreti executed the documents in the name of Mahender Kumar Chaurasiya. Mahender Kumar Chaurasiya started his work in the said shop. After some time, Dinesh Kukreti asked Mahender Kumar Chaurasiya for providing some space for the purpose of running STD booth by his brother Devi Parsad. After opening of the STD booth, there started a dispute regarding the space in the said shop. In STD booth, which was being run by Devi Parsad, some unwanted elements also used to visit for calling. After sometime, dispute/ quarrel started between Mahender Kumar Chaurasiya and Devi Prasad and Dinesh. In the year 2008, accused Devi Parsad put his own lock over the lock of Mahender Kumar Chaurasiya. Thereafter, continuous quarrel arose between the accused persons and Mahender Kumar Chaurasiya. Police also came at the said shop and the said shop was locked by the Police.
14. PW8 Harender Kumar deposed that he is working as CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 11/ 38 PS- Karol Bagh driver at ST. Michel Junior School Parsad Nagar. In the year 1997, he used to work in Arravali International Surgical Instrument manufacturing Unit alongwith Dinesh Kukreti and we were fast friend. In the year 1999, he resigned from the Arravali International Surgical Instrument manufacturing Unit. He came to know Mahender Kumar Chaurasiya through Dinesh Kukreti. Both Mahender Kumar Chaurasiya and Dinesh Kukreti were friends. He had a scooter and for repairing and mechanic work of his scooter, he used to visit the shop of Mahender Kumar Chaurasiya. In the year 2000, when he saw the board at the said shop, then he came to know that the said shop was purchased by Mahender Kumar Chaurasiya as said by Mahender Kumar Chaurasiya. In the year 2003, one STD booth was opened in one corner of the said shop and was being ran by brother of Dinesh Kukreti namely Devi Parsad. He does not know the exact reason but some incident took place and thereafter, the said shop was locked by the police and till today the said shop is locked.
15. PW9 Inspector Ramesh Kumar Singh deposed that on 14.7.2009, one Court order alongwith complaint was marked to him for necessary action. It was the Court order regarding direction for registration of the FIR on the complaint of Sh. Mahender Kumar Chaurasiya. Thereafter, he prepared the rukka, Ex. PW9/A and given to duty officer for registration of the case. After registration of the case, duty officer handed over the investigation to him. During investigation, complainant Sh. Mahender Kumar Chaurasiya joined the investigation and handed over documents pertaining to the property and other documents which was seized vide seizure memo Ex. PW1/C. The seized CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 12/ 38 PS- Karol Bagh documents are mark A, mark B, mark C and mark D. Thereafter, he visited the spot where the alleged shop was situated and upon the instance of complainant, he prepared site plan Ex. PW1/B. On the same date, he took photographs from his personal camera and after developing the photographs, placed the same alongwith negatives Ex. P1 (Colly) with the case file. Thereafter, he recorded the statement of witnesses. Moreover, with regard to the same dispute, various PCR calls and various kalandaras were prepared by different IO. He collected those DD entries and placed with the case file and also recorded the statements of concerned police officials. The above stated DD entries are Ex. A1 to Ex. A7. Thereafter, accused Devi Parsad Kukreti was arrested vide memo Ex. PW6/A. His personal search memo was prepared vide memo Ex. PW6/B and thereafter accused was released on personal bond and surety bond vide memo Ex. PW9/B. After completion of the investigation, he prepared charge-sheet and filed in the Court.
16. In terms of statement recorded U/s 294 Cr.P.C, accused Devi Prasad Kukreti has not disputed the genuineness of DD No. 16A Ex. A1, DD No. 39A Ex. A2, DD No. 9A Ex. A3, DD No. 14A Ex. A4, DD No. 59B Ex. A5, DD No. 15A Ex. A6 and DD No. 61B Ex. A7.
STATEMENT OF THE ACCUSED PERSONS IN TERMS OF SECTION 313 Cr.P.C.
17. After prosecution evidence was closed, statement of the accused persons have been recorded in terms of provisions of Section 281 r/w 313 of The Code Of Criminal Procedure, 1973 (in short shall be referred to as Cr.PC). Both the accused persons CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 13/ 38 PS- Karol Bagh have denied all the allegations leveled by the prosecution.
Further, accused Devi Prasad Kukreti stated that the shop was closed and he was in Garhwal, Uttrakhand on 03.11.2008. The shop in question belongs to accused Dinesh and the complainant was working under permission of accused Dinesh, on the availability of work. He further stated that he has been falsely implicated by the police and is innocent. The complainant has evil eye over the shop and soon after accused Dinesh went to Dubai on 17.05.2005, complainant filed civil suit in Tis Hazari Court and filed false and concocted story against them.
Accused Dinesh stated that he is the owner of the shop in question as he had purchased the same and complainant has nothing to do with it. Further, the complainant was working with his permission on the availability of the work since 1998 and a false kalandara was prepared at the instance of the complainant in his absence, in order to grab the said shop illegally, when he was in Dubai. Accused further stated that the complainant had thrown false photocopies of false documents from the exhaust fan-hole/ space and when the shop was got opened, all the papers were found in the shop in bad conditions, except these documents dated 11.09.2000. That he has been falsely implicated by the police and he is innocent. He had purchased the shop in question on 27.06.2000 from one Shahid Ali and the complainant was doing work of mechanic under him, with permission on the availability of work and they both used to share the income earned from the said work of mechanic. When he went to Dubai on 17.05.2005, complainant had evil eye and started planning to grab the said shop and filed civil suit at Tis Hazari Court. When the said civil suit as well as appeal were dismissed, complainant CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 14/ 38 PS- Karol Bagh falsely implicated him in the present case in order to grab the property by pressurizing him. Both the accused persons have opted to lead defence evidence.
DEFENCE EVIDENCE
18. During defence evidence, twelve witnesses have been examined by the accused persons. Accused Dinesh Kukreti examined himself in terms of Section 315 Cr.P.C.
19. Accused Dinesh Kukreti appeared as DW1 deposed that he is working in Dubai in a company namely Alfuttail Pvt Company since May, 2005. He had started doing the work of scooter repairing/ puncture since 1998 at Jhandewalan and at that time, one boy/ staff namely Goverdhan was working with him. In June 1998, one of his friends namely Anusuiya Parsad working in Janta Market, came at his shop with Mahender Kumar and told him that Mahender Kumar needed job and he was a mechanic. Prior to that accused was not knowing Mahender Kumar. In the year 1999, accused had taken a shop on rent from Late Sardar Prem Singh. Thereafter, in the year 2000, he had purchased the shop No. 1864/2, DBG Road, Jhandewalan from Shahid Ali. The shop of Shahid Ali and the shop which he purchased, were adjacent to each other. For purchasing the shop No. 1864/2, there were agreement to sell, GPA, full and final receipt, affidavit of seller, possession letter executed between him and Shahid Ali Ex. DW1/A, Ex. DW1/B, Ex. DW1/C, Ex. PW1/D and Ex. DW1/E. After completion of all paper work and purchasing of the said shop, he put his board on the said shop on which "Garhwal Auto Work Shop" was written. The photograph of the said shop alongwith the board was also clicked which is Ex. D1. He had CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 15/ 38 PS- Karol Bagh also brought the original chain of documents of the ownership of the shop Ex. DW1/F (colly) (running from page no. 1 to 69). Thereafter, he applied for the electricity meter in the said shop vide Ex. DW1/G vide application No. 256486. Thereafter, electricity meter was installed in the said shop. The electricity bill pertaining to electricity meter installed in the said shop are Ex. DW1/H (colly) (running from page no. 1 to 7). He also brought the telephone bill issued from MTNL Ex. DW1/I (colly) (from page no. 1 to 11) with respect to the telephone installed in the said shop by him. He also brought the tax receipt with respect to the tax paid to the MCD by him with respect to the shop Ex. DW 1/J (colly) (from page 1 to 11). Further deposed that Mahender Kumar started his job at his shop on daily basis from 2000 to 2005. In the year 2005, he went to Dubai and prior going to Dubai, he told Mahender Kumar not to work on the said shop as his brother Devi Parsad Kukreti had no knowledge regarding the work of repairing/ mechanic. His brother Devi Parsad Kukreti was running STD booth. Thereafter, Mahender Kumar left the said shop and he (accused) went to Dubai. After his leaving to Dubai, Mahender Kumar started his job of repairing/ mechanic of two wheelers on the footpath in front of the shop. Thereafter, in the year 2006, Mahender Kumar filed a civil suit with respect to the shop which was dismissed in 2008. In year 2008, when he returned to India from Dubai, the STD booth was being run by his brother Devi Parsad Kukreti and Mahender Kumar was doing the work of repairing/ mechanic on the footpath in front of the said shop. After his return to Delhi, his brother Devi Parsad Kukreti went to the in-law's village Kimotha at Gharwal, Uttrakhand, due to death of his mother-in-law on 02.11.2008.
CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 16/ 38PS- Karol Bagh The death certificate of mother-in-law namely Sarda Devi is MARK D1/X. Again said, brother of Mahender Kumar namely Harender Kumar, was also doing the job of mechanic at his shop on daily wages. In 2005, Harender Kumar left his shop and started his job on another shop. On 03.11.2008, he had not opened the said shop and told to remove the encroachment by Mahender Kumar, which was on the footpath in front of his shop. Thereafter, he also made a complaint to the MCD regarding the same. He further stated that he could not recover the negatives from the shop. Witness also produced photograph of a building made of one room showing one of its walls in the picture and where it is written Nasha Mukti with a rounded hole covered with bricks on the wall shown in the picture which is MARK AD-1. He also produced one pen drive manufactured by Sandisk of 32 GB MARK AD-2. The copy of the complaint to the MCD made by him on 14.11.2008 is Ex. DW1/K. Thereafter, he made complaints to Commissioner of Police on 20.11.2008 Ex. DW1/L (colly) (2 pages). He also made complaint to the Commissioner of Police, LG, DCP Daryaganj, Smt. Sheela Dixit, ACP Karol Bagh, SHO Karol Bagh. Thereafter, he again made complaint to MCD from time to time. MCD removed the encroachment done by the complainant and the same was handed over to the police. Police again made him to sit on the same day. He gave RTI regarding the subject as to how complainant had again encroached the MCD Line in front of his shop. In the reply to the RTI, MCD responded that they had handed over the issue of encroachment of the shop to Delhi Police and now it is their headache. The complaint to ACP without any acknowledgement from its office is Ex. DW1/M (colly) (2 pages). The complaint to CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 17/ 38 PS- Karol Bagh SHO PS Karol Bagh with receiving thereon at point A is Ex. DW1/N (colly) (3 pages). The complaint to DCP is Ex. DW1/O and Ex. DW1/P (Colly). The complaint to LG is Ex. DW 1/Q. Despite these, he made many complaints to the Police for the removal of encroachment but police never paid heed to his complaints. On 11.6.2010, he again made complaint where he narrated the whole history of the case including of the fact that complainant has lost one case. He also included and enclosed all the original ownership papers of the shop in the civil suit and gave the complaint to IO/ SI Ramesh Kumar but IO did not consider anything. Despite that he filed the case (chargesheet) against him and visited his house. The police did not do any inquiry. When the civil suit was dismissed, he got this noted to the police but they did not pay any heed to it. Whenever he goes to shop, the complainant was always in mood of fighting or quarreling with him. The complainant lost the civil suit three times. When his brother Devi Parasad Kukreti used to sit at his shop, police harassed him many times. The complaint to the police is Ex. DW1/R (colly). The complainant filed one civil suit against him by forging his signature thereon for which he made complaint to the police Ex. DW1/S (Colly). When Mahender Kumar approached him for securing a job, he was in a great penury condition and he did not even have money to purchase his need. Complainant had received one Inland letter card in his name where the address of the addressee was mentioned as Mahender Kumar Gharwal Auto Center T-1864/2 Desh Bandhu Gupta Road, near Nag Cinema Jhandewalan New Delhi, but he removed word Gharwal from the address. The same is MARK AD3 (2 pages). Witness also produced one bond of LIC with CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 18/ 38 PS- Karol Bagh policy no. 121560248 Ex. DW1/T and stated that in the LIC also, his address is mentioned as T-1864/2 Desh Bandhu Gupta Road, near Nag Cinema Jhandewalan New Delhi. Witness submitted that in the photograph MARK AD1, complainant is also standing at point X in the photograph.
20. DW2 Rakesh Kumar Gola deposed that he is a contractor and in profession of constructing the buildings. He knows accused Dinesh Kukreti since 1993-94 and use to sit at Jhandewalan Mandir and in second floor, his office of Vishwa Hindu Parishad was situated. In those times, he was Center Minster of VHP. He had meeting terms with accused Dinesh and since 1995, they often visited Holy Shrine of Amarnath Yatra and this relation continued till 2002. He used to park his vehicle in front of the shop of accused Dinesh Kukreti, however, he does not remember the number of the shop but it is in the corner. The shop is situated on Desh Bandhu Gupta Road and accused had performed holy yagnas when he had purchased the shop in the year 2000. Since then, he had good terms with him. Mahender Kumar and his brother Hardener Kumar used to work at his shop and whenever he wanted to get fixed any problem in his motorcycle, these two brothers used to fix it. In the year 2005, Dinesh Kukreti went to Dubai and his elder brother had opened STD at his shop. In 2008, accused had some disputes and he closed the shop and went to PS Karol Bagh. In this regard he asked Mahender to not raise any dispute with the brother of the accused Kukreti. Thereafter, a case between them went on. He had good terms with Mahender and used to get fix problems in his motorcycle from Mahender.
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21. DW3 Shahid Ali deposed that in the year 2000, he had sold his shop at Karol Bagh (whose number he does not remember right now) to Dinesh Kukreti for amount Rs. 70,000/-. He had no knowledge except selling the said shop to accused Dinesh Kukreti for amount of Rs. 70,000/-. Due to lapse of time, he could not recollect regarding the document executed for the sale of the said shop.
22. DW4 Abhishek Purohit deposed that all the three brothers namely Ramesh Kukreti and accused Devi Parsad and Dinesh are known to him since 1991 as they were his tenants. He used to visit the shop of accused Dinesh as they were friend and sometime also, he used to visit for repairing of his scooter at the said shop at Jhandewalan near Naaz Cinema (he does not know the shop number). Accused Dinesh Kukreti is reputed person in the society and people know him. He knows Mahender as Mahender used to do the work of repairing under accused Dinesh Kukreti. Dinesh Kukreti had purchased the said shop in the year 1999-2000.
23. DW5 Smt. Renu deposed that accused Dinesh Kukreti and Devi Parsad and their whole family are known to her since 2000. When she used to visit the shop in dispute, complainant Mahender used to work on the footpath in front of said shop. She knows about the case but have no knowledge whether complainant Mahender was working under accused Dinesh.
24. DW6 Anusuiya Prasad deposed that he is working as security guard at Jal Board Office, Rohini Sector 25. From year 1987-2011, he used to do the work of PVC Gift items at B-52 near petrol pump, S.P Mukerjee Market, Jhandewalan. Accused CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 20/ 38 PS- Karol Bagh Dinesh Kukreti is his friend and he belongs to his native place Uttarakhand. Complainant Mahender used to work at the shop of Mr. Nihal at S.P Mukherjee Market, Jhandewalan, back side of petrol pump. In the year 1997-98, accused Dinesh Kukreti needed staff/ labour in his shop and complainant Mahender was searching for job. As he was knowing both, he took complainant Mahender at the shop of accused Dinesh Kukreti. He used to visit frequently at the shop of accused Dinesh Kukreti. Complainant Mahender used to work at the said shop. Further, he came to know complainant Mahender tried to took the possession of the said shop of Dinesh Kukreti.
25. DW7 Retd ASI Rajender Singh deposed that on 20.06.2014, he was working as DO at PS- Karol Bagh. W/Ct Suner made entry DD No. 33B dated 20.06.2014 Ex. DW1/N (colly) in rojnamcha (Station Daily Diary) on his directions. The copy of same is Ex. DW7/A (OSR).
26. DW8 Retd ASI Ishwar Singh deposed that on 10.05.2012, he was posted as DO and, on that day, Ct Indresh made DD No. 76B dated 10.06.2012 Ex. DW1/N (colly) in rojnamcha (station daily diary) on his directions. The copy of the same is Ex. DW8/A (OSR).
27. DW9 ASI Chander Mohan deposed that on 04.07.2013, he was posted as DO and, on that day, Ct Krishan Kumar made DD No. 75B dated 04.07.2013 Ex. DW1/S (colly) in rojnamcha (station daily diary) on his directions. The copy of the same is Ex. DW9/A (OSR).
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28. DW10 SI Madan Lal deposed that on 09.05.2016, he was posted as DO and, on that day, Ct Kapil made DD No. 70B dated 09.05.2016 Ex. DW1/R (colly) in rojnamcha (station daily diary) on his directions. The copy of the same is Ex. DW10/A (OSR).
29. DW11 Sandeep Sharma, Licensing Inspector, Karol Bagh Zone, MCD produced the summoned record i.e. the photocopy of complaint made by Dinesh kumar Kukreti against Mahender Kumar Chaurasiya to MCD regarding temporary encroachment by Mahender Kumar Chaurasiya on Government land. He deposed that a letter has been sent to Assistant Commissioner, City SP Zone on 15.06.2023 Ex. DW11/A. A meeting was also fixed for 27.06.2023 vide letter No. D- 5173/AC/KBZ/2023 dated 26.06.2023 Ex. DW11/B. Further deposed that on 27.06.2023, Assistant Commissioner City SP Zone sent reply vide Whatsapp which is MARK AC in which it was replied that "no document/ file/ record relating to the present case with respect to property No. T-1864/2, near Naaz Cinema, Jhandewalan, Karol Bagh, Delhi is available in City SP Zone". Thereafter, again Assistant Commissioner Karol Bagh Zone requested to produce all relevant documents, in original, related to this case, before the Court vide letter No. 5190/AC/KBZ/2023 dated 30.06.2023 Ex. DW11/C.
30. HC Rakesh from Complaint Branch, DCP Office, Central District, Daryaganj, Delhi appeared as DW12 and deposed that he is working in the aforesaid office. He produced the report regarding the destroying of the records pertaining to complaint dated 20.11.2008 which is Ex. DW12/A. The report regarding the same from ACP (HQ) is Ex. DW12/B and the CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 22/ 38 PS- Karol Bagh report regarding the same from DCP office is Ex. DW12/C. FINAL ARGUMENTS
31. Final arguments as advanced by the learned APP assisted by Ld counsel for complainant and on behalf of the accused persons have been heard. Record have been perused and considered.
The learned APP for the State, in crux, has submitted that the prosecution has proved its case against the accused persons beyond reasonable doubt. Ld. APP for the State has argued that based on the testimonies of the prosecution witnesses and materials available on record, the accused persons are liable to be convicted.
Whereas, Ld. Counsel for the accused persons, in crux, has submitted that the accused persons are innocent and have been falsely implicated in the present case. It is further the submission of Ld. counsel for accused persons that complainant has failed to establish either his ownership or possession over the property in question. That earlier, suit for permanent and mandatory injunction, filed by the complainant, seeking injunction against the accused persons (defendant no. 1 and 4 therein), from forcibly dispossessing him or interfering or obstructing in his business activities as well as in peaceful enjoyment of the shop bearing no. T-1864/2, Near Naaz Cinema, Jhandewalan, Delhi, filed on behalf of complainant and appeal thereof were dismissed by the court concerned. The Ld. Counsel pleaded for acquittal of both the accused persons.
EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE, BRIEF REASON AND THE CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 23/ 38 PS- Karol Bagh DECISION
32. In the present case, both the accused person have been charged for offences punishable under Sections 341/451/454/34 IPC on the allegations that both the accused persons namely Devi Prasad Kukreti and Dinesh Kumar Kukreti, in furtherance of common intention, committed house trespass in the shop no. T- 1864/2, Near Naaz Cinema, Jhandewalan, Delh, belonging to complainant Mahinder Kumar Chaurasia, in order to restrain the complainant to enter into the above-said shop and also wrongfully restrained the complainant to enter into the said shop. Thereafter, in the night of 05/06.11.2008, at the abovesaid shop, both the accused persons, in furtherance of their common intention, committed house breaking by entering the said shop belonging to complainant, after breaking the lock of the complainant, in order to restrain the complainant to enter the said shop and wrongfully restrained him from entering the said shop.
33. Before proceeding further, it is apt to delineate the essential ingredients required to prove the offences punishable under Sections 341/451/454/34 IPC. Same is enumerated as below.
34. Section 451 IPC - Criminal Trespass in Dwelling Place:
1. Unlawful Entry: The accused must have entered a dwelling place, such as a residential house, unlawfully and without the permission of the owner or lawful occupant.
2. Intent to Commit Offense or Wrongful Loss: The entry must have been accompanied by the intention to commit an CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 24/ 38 PS- Karol Bagh offense inside the dwelling or to cause wrongful loss to the owner or occupant.
3. Dwelling Place: The property in question must be a dwelling place.
4. Unlawful Entry Without Consent:
The entry must be unauthorized and without the consent of the owner or occupant.
35. Section 454 IPC - Lurking House-Trespass or House-Breaking in Order to Commit an Offense:
Lurking or Presence: The accused must have been lurking (waiting or hiding) inside or near a building or dwelling, indicating their intention to commit an offense inside. Intent to Commit Offense: There should be evidence to prove that the accused had the intention to commit an offense inside the building or dwelling, for example, theft or any other criminal act.
Dwelling Place: Similar to section 451, the place in question must be a dwelling place where people reside or live.
Presence with Criminal Intent: The accused's presence or lurking near the building must be accompanied by a criminal intent or purpose to commit an offense.
36. Section 341 of the IPC deals with the intentional curtailment of another person's freedom of movement without their consent and without any legal justification.
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37. For offenses under Sections 451 and 454 IPC, the prosecution needs to establish that the accused person not only entered the premises unlawfully but also had the intention to commit an offense that is punishable with imprisonment once inside. To prove intent, it is essential to show that the property belonged to the complainant or that the complainant was in established possession of the property. To differentiate between innocent entry and unlawful trespass, the prosecution needs to prove that the accused persons entered a property where they had no lawful right to be. If the ownership or established possession of the property by the complainant is not established, the accused persons may be well within their right to argue that their presence was justified or lawful.
38. Coming to the present case, the prosecution has examined complainant as key witness of the case. His testimony is material in deciding the case in hand. In his account, PW-1 affirms that in 1999, a shop (No. T-1864/2) near Naaz Cinema in Jhandewalal, New Delhi, was on sale by Shahid Ali, son of Liyakat Ali. Notably, Shahid Ali declined PW-1's purchase request due to an adjoining auto repair shop run by his uncle, a business PW-1 sought to establish. PW-1's close friend, Dinesh Chand Kukreti, advocated the procurement of the aforementioned shop in his own name, with the financial onus resting squarely upon PW-1. The shop was indeed purchased under Dinesh Chand Kukreti's name, with an understanding for eventual transfer to PW-1. This accord was documented on plain paper. Post-acquisition in 1999, PW-1 initiated his auto repair business. Subsequently, in 2003, as per Kukreti's request, PW-1 allowed Kukreti to run an STD shop CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 26/ 38 PS- Karol Bagh within a 2-square-foot space in the same establishment.
39. Based on the testimonial account provided by PW-1, the complainant, it is evident that the shop under consideration was acquired under the name of the accused, Dinesh Kumar Kukreti. The complainant asserts that even though the shop was registered in the name of accused no. 2, Dinesh Kumar Kukreti, the payment was made by the complainant. This payment was made based on the assurance provided by accused no. 2 that the shop's ownership would subsequently be transferred to PW-1. The complainant claims that this understanding was documented on plain paper. During cross-examination, PW-1 stated that the shop was procured in the year 2000, involving a payment of Rs. 70,000/- as Bayana in June 2000, and an additional cash payment of Rs. 3 lakhs to accused Dinesh Kumar Kukreti. The latter individual then transferred the funds to Liyakat Ali. PW-1 further affirmed that the total cost of the shop was Rs. 3,70,000/-.
40. It is crucial to note that the complainant identified his profession as a scooter mechanic. No impartial witnesses were brought forth to validate the alleged payment of Rs. 3,70,000/- to accused no. 2 by the complainant. Additionally, no documented evidence confirming such payment, for the purpose of purchasing the shop in question, was presented, or validated in the court. The substantial nature of this sizeable transaction raises questions about the absence of a written acknowledgment and the lack of proper documentation or mutual understanding.
41. Photocopies of specific documents were produced by the CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 27/ 38 PS- Karol Bagh complainant, including photocopies of the mutual agreement marked as A, MCD tax receipts marked as B (spanning 7 pages), address-related documents marked as C (spanning 4 pages), and an MCD challan receipt marked as D (spanning 3 pages). It should be noted, however, that the originals of these documents were not presented. Furthermore, no witnesses were summoned to authenticate the contents of these documents. Consequently, the credibility and probative value of these documents are compromised, rendering them insufficient to substantiate the prosecution's case.
42. Apart from the complainant, Prosecution has examined series of witnesses to bolster its case. Let's examine the same in brief.
43. The testimony of PW2 Raju reveals that Mahender Kumar's shop was subjected to a lock by Dinesh Kumar Tiwari, thereby implying a potential dispute over possession. The acknowledgment of PW4 Radha Raman Sharma of police intervention, leading to the locking of Mahender Kumar's shop, suggests a complicating factor in establishing clear ownership or possession. The account of PW5 Dinesh alludes to a significant possession dispute between Mahender Kumar and Dinesh, further diluting the prosecution's claim. The assertion of PW7 Bans Raj Shukla that documents were initially prepared in Dinesh Kukreti's name raises questions about the accuracy of ownership records. Further, the recognition of PW8 Hardener Kumar of the emergence of a dispute over the shop's space, leading to police intervention and locking, casts doubt on the CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 28/ 38 PS- Karol Bagh straightforwardness of the prosecution's position.
44. Contextually, these witnesses bolster the skepticism surrounding the prosecution's narrative by introducing elements of uncertainty, contention, and subsequent police involvement. In conjunction with prior discussions, these testimonies collectively fails to strengthen the prosecution's case in establishing a clear, sustained, and uncontested possession or ownership of the shop in question.
45. Progressing further, of salient import is the defense's presentation of Shahid Ali in the capacity of DW-3, a pivotal figure integral to the case. This individual is none other than the source from which the prosecution alleges the subject shop was procured in the name of accused no. 2, with the complainant subsequently disbursing the payment to the said accused, the same being then channeled to DW-3. A marked significance is attached to the deposition of this witness, who attests unequivocally to having sold the very shop in question to accused no. 2, Dinesh Kumar Kukreti, for the stipulated amount of Rs. 70,000/-. The crucible of cross-examination has not unveiled any crevice capable of tainting this witness's account.
46. The deposition of DW-3 Shahid Ali, the erstwhile owner of the shop under scrutiny, significantly permeates the case's fabric. This witness emerges as a decisive counterpoint to the complainant's contentions of the shop's acquisition for the sum of Rs. 3,70,000/-. His testimonial narrative markedly diverges from CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 29/ 38 PS- Karol Bagh the complainant's assertion that DW-3 held back from vending the shop due to the juxtaposition of his uncle's auto repair business adjacent to the subject shop, a claim that now stands confuted. In light of DW-3's evidence, the veracity of the complainant's narrative becomes conspicuously fragile, prompting a reconsideration of the prosecution's stance.
47. Moving further, defense has examined accused no. 2 Sh. Dinesh Kumar Kukreti as DW-1. The witness testified that he commenced scooter repair and puncture work in 1998 at Jhandewalan. Initially, an employee named Goverdhan assisted him. In June 1998, his acquaintance Anusuiya Parsad introduced Mahender Kumar, seeking employment as a mechanic, although the accused had no prior knowledge of Mahender Kumar. In 1999, the accused rented a shop from Late Sardar Prem Singh. Subsequently, in 2000, he purchased shop No. 1864/2, DBG Road, Jhandewalan from Shahid Ali. The purchased shop was adjacent to Shahid Ali's shop. Several documents substantiate the purchase, including an agreement to sell, GPA, full and final receipt, affidavit of the seller, and a possession letter (Ex. DW1/A to Ex. DW1/E). After completing the paperwork, he placed a "Garhwal Auto Work Shop" sign on the shop and documented it (Ex. D1). Original ownership documents were presented (Ex. DW1/F, pages 1 to 69). He applied for and obtained an electricity meter (Ex. DW1/G) and provided corresponding bills (Ex. DW1/H, pages 1 to 7). Telephone bills (Ex. DW1/I, pages 1 to
11) and MCD tax receipts (Ex. DW 1/J, pages 1 to 11) were also presented.
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48. DW-1 further deposed that Mahender Kumar worked at the shop daily from 2000 to 2005. In 2005, prior to his departure for Dubai, the accused instructed Mahender Kumar not to work there as his brother was unfamiliar with repair work, running an STD booth instead. Upon leaving for Dubai, Mahender Kumar worked on the footpath in front of the shop. In 2006, Mahender Kumar filed a civil suit for the shop, which was dismissed in 2008. Upon the accused's return in 2008, his brother operated the STD booth, while Mahender Kumar continued working on the footpath in front of the shop.
49. The defense has presented several other witnesses to support their case regarding the possession and ownership of the accused, Dinesh Kukreti, in the shop in question. The testimonies of these defense witnesses (DWs) suggest that the accused had a legitimate claim to the shop and had maintained a presence there. However, it is hereby clarified that this Court is not deciding the ownership of the shop in question and any observations made, should be construed in reference of case in question only and not a definitive opinion on the ownership of shop in question.
50. DW2 Rakesh Kumar Gola deposed that he knew accused Dinesh Kukreti since 1993-94. He further mentioned that he often visited the accused's shop, which was located on Desh Bandhu Gupta Road. Witness further testified that he had a good relationship with the accused and used to park his vehicle in front of the accused's shop.
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51. It has further come in his deposition that he was aware of the accused performing holy yagnas after purchasing the shop in 2000. Witness further highlighted the accused's relationship with Mahender Kumar and Harender Kumar, who used to work at the shop and helped with motorcycle repairs.
52. DW4 Abhishek Purohit confirmed his acquaintance with all three Kukreti brothers, including the accused, since 1991. He stated that he would visit the accused's shop for repairs. He further testified that Mahender worked under the accused's supervision for repairs. Further, asserted that the accused had purchased the shop in 1999-2000.
53. DW5 Smt. Renu deposed that she knew accused Dinesh Kukreti and his family since 2000. She noted that Mahender used to work on the footpath in front of the accused's shop and was familiar with the case, though she did not know the details of Mahender's employment.
54. DW6 Anusuiya Prasad stated that he knew the accused and worked in the same field as him. Witness recalled that Mahender used to work at Mr. Nihal's shop near the petrol pump. He further testified that he introduced Mahender to the accused in 1997-98 when the accused needed staff for his shop. He further asserted that Mahender worked at the accused's shop and attempted to take possession of it at some point.
55. The defense witnesses, especially DW2, DW4, and DW6, CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 32/ 38 PS- Karol Bagh establish a history of association between the accused and various individuals. This suggests that the accused had a presence in the area for a considerable period, which strengthens the defense's claim of ownership and possession. Further, DW6's testimony about introducing Mahender to the accused as a potential employee provides context for Mahender's involvement with the shop. This weakens the opposing argument that Mahender was an independent occupant of the shop. Moreover, as noted above, DW3's statement about selling the shop to the accused for a specific amount provides a direct link between the accused and the property in question. Overall, the defense case draws on a variety of testimonies to establish a timeline of the accused's presence, the shop's purchase, and the relationships surrounding the accused and the shop. The consistent narrative from multiple witnesses contributes to the strength of the defense's position in proving the accused's possession and ownership of the shop.
56. Importantly, it is relevant to note that a prior Civil Suit brought by the complainant sought a permanent and mandatory injunction against the accused persons (defendant nos. 1 and 4 therein) to prevent forceful dispossession, interference in business operations, and disturbance to peaceful enjoyment of the shop marked as T-1864/2, located near Naaz Cinema, Jhandewalan, Delhi. However, the then Ld. Civil Judge, through an order dated 05.09.06 (referenced as Mark DW/X), declined interim relief for restraining the alleged forcible dispossession by the accused persons (defendant nos. 2 and 4), based on the absence of documentary evidence substantiating the CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 33/ 38 PS- Karol Bagh complainant's possession of the shop. Furthermore, the appeal against this ruling met a similar fate, as the then Ld. Additional Senior Civil Judge, in an order dated 17.02.2009 (referred to as Mark DW/Y), highlighted that the plaintiff (complainant herein) heavily relied on a mutual agreement dated 07.09.2000, purportedly executed by defendant no. 1 (accused no. 2 herein) in the plaintiff's favor. This agreement, however, fails to reference the purchase of the shop by either the plaintiff or defendant no. 1. Notably, the mutual agreement lacked attestation by any authority, its execution remained disputed from defendant no. 1's perspective, and the act of executing a mutual agreement for advancing a loan was deemed unconventional in such transactions. These observations collectively cast doubt on the complainant's claim and the strength of their case.
57. Moreover, for the purpose of substantiating their claim of possession, the complainant has presented a series of documents. These include tax receipts issued by the Municipal Corporation of Delhi marked as Exhibit B, along with an additional set of documents pertaining to the address marked as Exhibit C. Additionally, a receipt of MCD challan marked as Exhibit D has been submitted. Nevertheless, it is noteworthy that the original versions of the aforementioned receipts have not been formally submitted as evidence. Furthermore, no testimony from relevant witnesses has been provided to authenticate these documents. Consequently, it is evident that the complainant's attempt to substantiate their possession through the aforementioned evidence remains inconclusive and subject to scrutiny, as the foundational elements of originality and witness corroboration CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 34/ 38 PS- Karol Bagh have not been satisfactorily addressed.
58. Importantly, the complainant's own account underscores a significant fact, that the subject shop was indeed acquired in the name of the accused no. 2. Notably, it is claimed that this acquisition took place in 2000, with the assertion that despite registration under accused no. 2's name, Dinesh Kumar Kukreti, the financial transaction was facilitated by the complainant. Allegedly, this financial involvement was predicated on the assurance from accused no. 2 that ownership would eventually be transferred to the complainant. The complainant contends that this understanding was documented informally. However, it is conspicuously absent from the records that the complainant took affirmative steps to assert his alleged rights over the shop until the year 2006. The prolonged six-year inaction on the part of the complainant raises a pivotal question regarding the credibility of his claim. This lack of proactive engagement casts doubt upon the prosecution's case, rendering it questionable. Notably, the complainant does not assert that he was a tenant, lessee, or licensee of the said shop. Consequently, the capacity in which the complainant asserts his established possession over the shop becomes dubious. This aspect, by extension, undermines the fundamental basis on which the prosecution's case is grounded.
59. Moreover, it is the claim of the complainant that on 06.11.2008, at about 6.00 am, one of his neighbor namely Deepak had informed him that shutter of his aforesaid shop had been broken and all his belongings were scattered outside the shop. However, it is a conspicuous omission that the said CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 35/ 38 PS- Karol Bagh Deepak, a pivotal witness to this alleged incident, was not actively engaged in the investigative process. This lapse not only introduces an element of doubt but also substantially weakens the foundation upon which the prosecution seeks to rest its case. It is further relevant to note that it is own case of the complainant that one of the keys of the shop in question was in the possession of the accused Dinesh Kumar Kukreti. Complainant further significantly admitted that accused Dinesh Kumar Kukreti was running a STD shop from the said shop. The same strengthen the claim of the accused that he was in possession of the shop in question.
60. The offenses charged under Sections 341/451/454/34 IPC necessitated the prosecution to establish specific elements, including unlawful entry, intent to commit an offense, ownership or possession of the property, and absence of consent. Crucially, the prosecution was required to prove ownership or possession to substantiate intent. However, the complainant's narrative of the shop's acquisition is marred by discrepancies, lack of concrete documentation for a substantial payment, and prolonged inaction in asserting possession/ownership for nearly six years. This casts doubts on the credibility of the claim. Moreover, the presented documents lack original versions and authoritative witness corroboration, eroding their probative value. Conversely, the defense has introduced a series of witnesses to support their case, asserting that the accused had a legitimate claim to the shop and maintained a presence there. The testimonies of these witnesses collectively present a history of the accused's association with the shop, weakening the complainant's contention of exclusive CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 36/ 38 PS- Karol Bagh possession.
61. A pivotal point is the deposition of DW-3 Shahid Ali, the erstwhile shop owner, who categorically affirms selling the shop to accused no. 2. His unblemished testimony under cross- examination contradicts the complainant's narrative. Furthermore, the court notes the prior Civil Suit filed by the complainant seeking interim injunction failed due to a lack of documentary evidence substantiating his possession of the shop. Judicial observations regarding the mutual agreement's inadequacies and absence of reference to the shop's purchase cast doubt on the complainant's claims. Considering the cumulative evidence, the prosecution's failure to establish essential elements beyond reasonable doubt and the doubt-inducing aspects of the case, the accused persons, Devi Prasad Kukreti and Dinesh Kumar Kukreti, are entitled to the benefit of doubt.
62. In the case of 'Kulwinder Singh Vs. Kafeel Ahmad' Cr. L.P. No. 478 of 2011, decided on 04.01.2013 Hon'ble Delhi High Court has held that "the basic principle in criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is any slightest doubt about the commission of an offence then the benefit has to accrue him".
63. It appears also relevant to acknowledge and appreciate the fact that criminal conviction entails enigmatic and stigmatic experiences and exposures for the accused and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature. The testimony of CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 37/ 38 PS- Karol Bagh complainant, carrying several material contradictions, does not inspire the confidence of the court and thus the same cannot be relied upon. From the above discussion and findings, in my considered view, accused persons deserve to be given benefit of doubt.
64. In view of the above analysis, I am of the considered opin- ion that the prosecution has failed to prove its case against the ac- cused persons beyond reasonable doubt. Accordingly, both the accused persons namely Devi Prasad Kukreti and Dinesh Kumar Kukreti are acquitted of the offences punishable U/s 341/451/454/34 IPC.
65. Bail bond in terms of Section 437A Cr.PC has already been obtained from the accused persons (since acquitted) in compli- ance of the judgment of the Hon'ble High Court in State Vs Virender Yadav & Anr. 2014 I A.D (Del.) 389.
Bonds accepted in terms of provision of section 437A Cr.P.C, 1973, shall remain in force for six months from today.
Digitally signed by DEEPAK DEEPAK KUMAR Announced in the open Court KUMAR Date: 2023.08.25 on 25.08.2023 17:19:55 +0530 (DEEPAK KUMAR-1) ACMM-01 (CENTRAL) THC/ DELHI CASE No. 292298/2016 FIR No. 94/2009 State Vs. Devi Prasad Kukreti Etc. Page 38/ 38 PS- Karol Bagh