Delhi District Court
State vs . Shyam Lal on 11 December, 2018
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 374/06
PS : Shakarpur/Crime Branch
u/S : 448 IPC
STATE Vs. SHYAM LAL
JUDGMENT
A Unique ID No. of the case 7225/16
B Name of complainant Smt. Rajni Gupta w/o Sh. Mahesh Chand
tupta r/o House no.4/1440, Shalimar Park,
Shahdara, Delhi.
C Name of the accused & Shyam Lal S/o Sh. Mam Chand R/o
his parentage and address H.No.33 B, J&K Extension, Laxmi Nagar, Delhi.
D Offence Complained of 448 IPC E Date of commission of 19/20.01.2005 offence. F Date of Institution 19.05.2007 G Offence Charged 448 IPC H Plea of the accused Pleaded not guilty I Order Reserved on 11.12.18. J Date of Pronouncement 11.12.2018 Final Order Acquitted.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The story of the prosecution is that in the night of 19/20.01.2005 at unknown time at shop no.C-11, Aruna Park, Laxmi Nagar, Delhi- 110092, within the jurisdiction of PS Shakarpur, accused Shyam Lal had committed house trespass in the said shop and thereby he is alleged to have committed an offence punishable under Section 448 FIR No.374/06 State vs. Shyam Lal Page 1 of 11 IPC.
2 On the basis of the said allegations and on the complaint (Ex.PW5/A) of the complainant Ms. Rajni Gupta, FIR bearing number 374/06 (Ex.PW 2/A) PS Shakarpur under section 448 IPC was lodged on 09.05.2006.
CHARGE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 09.05.2007 against the accused Shyamlal.
4 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 448 IPC was framed against the accused Shyamlal and read out to him to which he pleaded not guilty and claimed trial on 30.10.2009. PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 15 witnesses in all:
6 PW1 Roop Lal is a hostile witness who was cross examined by the Ld. APP for State but he did not disclose anything about the present case.
7 PW2 HC Madan Lal is a formal witness being hte duty officer who proved the registration of the present FIR on 09.05.2006 and its copy as Ex.PW2/A. 8 PW3 HC Satvir Singh is a witness in whose presence specimen signatures of accused Shyamlal were taken on blank paper by the IO on 13.03.2007. He proved the specimen signatures as Ex.PW3/A to A-9 and also identified the accused. He was not cross examined on behalf of the accused.
FIR No.374/06 State vs. Shyam Lal Page 2 of 119 PW-4 Naresh Gupta deposed that on one day Shyamlal had called him to his house where police persons were searching some documents but nothing was recovered. Thereafter he along with police officials and accused Shyamlal had gone to his office at Laxmi Nagar where 2-3 papers were seized by the police vide memo Ex.PW-4/A. 10 PW-5 Rajni Gupta is the complainant who deposed that accused Shyamlal had let her a shop bearing no.C-11, Aruna Park, Laxmi Nagar, Delhi in the year 2001 through one Dharam Chand. Dharam Chand had expired in the month of November, 2004. In the night of 19/20.01.2005, accused Shyam Lal took the possession of the said shop by breaking the locks. She made a complaint to the police which is Ex.PW5/A. Prior to that on 14.01.2005 and 15.01.2005 also she had lodged complaints with the police but no action was taken. She handed over documents to the police regarding the present case which were seized vide memo Ex.PW5/B. She identified the accused. She had also filed a Writ Petition before the Hon'ble High Court of Delhi after registration of the FIR however, the same was dismissed. 11 PW-6 Om Prakash Goel is again a hostile witness who denied having made any statement to the police despite cross examination by the Ld. APP for the State.
12 PW-7 Chetan Jaiswal deposed that he was doing the work of printer from property no. C-19, Aruna Park, Laxmi Nagar in the year 2006. One Mahesh Chand Gupta and his wife were running a shop from property no. C-11, Aruna Park, Laxmi Nagar, Delhi which was at a distance of 100 ft from his house.
13 PW-8 Rakesh Gupta and PW9 Mukesh Sharma are again hostile witnesses who did not support the case of the prosecution despite FIR No.374/06 State vs. Shyam Lal Page 3 of 11 cross examination by Ld. APP for State.
14 PW-10 Smt. Nirmal Jain is a witness from Jain Co-operative Bank, Laxmi Naagar Branch who deposed that in the year 2001, one current account was opened in their bank bearing no. C-199 in the name of M/s Aggarwal Group of Agencies through its proprietor Mahesh Gupta with the address C-11, Aruna Park, Laxmi Nagar, Delhi. At the time of opening of the account the proprietor Mahesh Gupta had submitted the account opening form, photocopy of PAN Card, Photocopy of Election I Card, however he had not given the address of the firm to the Bank. Now the said account has been closed. She had submitted to the IO bank Statement of the said account for the period 30.06.2001 to 24.06.2003 which was seized vide memo Ex. PW 10/A and the bank statement is Ex PW 10/B. She also produced the certificate under Banker's Book Evidence Act regarding the authenticity of the said record which is Ex. PW10/C. She also produced the original bank account opening form alongwith photocopies of the PAN Card and Election I card submitted which are Ex. PW 10/D. 15 PW11 is ASI Yogender who had handed over the complaint filed by Rajni Gupta with PS Shakarpur to ASI Budh Prakash (Crime Branch) on the directions of the SHO, PS Shakarpur on 26.03.2007. 16 PW12 Retired SI Ram Avtar is one of the IO of the case to whom the investigation was marked on 07.02.2006. During investigation he had arrested the accused from his residence on 18.07.2006 and released him on personal bond which is Ex. PW 12/A. 17 PW13 Ram Narain Chauhan is a witness from MTNL who deposed that on 06.11.2006, he had handed over the photocopies of PAN number AAGPGO789E in the name of Mahesh Chand Gupta (Mark FIR No.374/06 State vs. Shyam Lal Page 4 of 11 PW 13/A-1), photocopy of the Ration Card no. 858235 showing head of the family as Mahesh Chand (Mark PW13/A-2) and No Objection Certificate issued by one Shyam Lal (Mark 13/A-3) which were seized vide memo Ex. PW 13/A. On 01.03.2007 he handed over the original NOC issued by Shyam Lal (Ex. PW5/DA)to the IO which was seized vide memo Ex. PW 13/B. 18 PW14 ACP Dinesh Kumar is also one of the IO of the present case to whom investigation was marked on 10.05.06. On 17.05.06 he had recorded the statement of complaint Rajni Gupta u/s 161 Cr.PC. On 02.06.2006 he received the vigilance enquiry report from ACP, Special Team, Crime Branch. Thereafter on 06.06.2006 he was promoted.
19 PW 15 ASI Budh Prakash is the main IO of the case to whom the investigation was marked on 12.09.06. During investigation he collected NOC given by accuced Shyam Lal to complainant Rajni Gupta for installing MTNL phone in the disputed property from the office of MTNL. He also obtained specimen signatures of accused Shyam Lal at his house in the presence of constable Satbeer and his admitted signature on a rent agreement executed by him qua his shop at Angad Nagar. Thereafter, on 13.3.2007, he deposited the specimen signatures, admitted signatures and questioned documents i.e. NOC with CFSL Rohini. He also collected the original complaint Ex. PW 5/A from PS Shakarpur and seized the same vide memo Ex. PW 11/A. During investigation, he seized certain documents produced by the complaint vide memo Ex. PW 5/B, prepared the site plan Ex. PW 15/B, seized certain documents from MTNL Office vide memo Ex. PW 13/B, seized the admitted signatures of accused Shyam Lal vide memo Ex. PW 4/A and also seized certain FIR No.374/06 State vs. Shyam Lal Page 5 of 11 documents from Jain Cooperative Bank vide memo Ex. PW 10/A. After completion of investigation he filed the charge sheet. However, till the filing of the charge sheet FSL result was not received by him. 20 In addition to the above evidence, accused admitted the authenticity of FSL report bearing no.2007/D-1026 dated 01.05.2007 and report no.FSL 2007/D-1750 dated 19.07.2007 u/s 294 Cr.P.C. which are Ex. AD-1 and AD-2. Accordingly the examination of relevant witnesses was dispensed with.
STATEMENT OF ACCUSED 21 Statement of the accused Shyam Lal was recorded u/s. 313 Cr.P.C.
on 28.11.2018 wherein the entire incriminating evidence proved on record against him was put to him. He stated that he had been falsely implicated in the present case and is innocent. He stated that complainant Rajni Gupta was not a tenant under him nor shop no.C- 11, Aruna Park was ever in her possession. She had also filed a writ petition before Hon'ble High Court of Delhi which was dismissed. The complainant had not filed any document to show that she was in possession of the said shop at any point of time. He also stated that he was not aware about opening of any bank account by Mahesh Gupta or complainant Rajni Gupta with Jain Cooperative Bank giving the address of property no.C-11. However, even as per admission of PW 10, no address proof of shop no.C-11 Aruna Park was given by them at the time of opening of the bank account. He also denied his signatures on NOC allegedly submitted by the complainant for obtaining MTNL connection and also stated that the ration card filed with the NOC does not bear the address of C-11 Aruna Park. He further stated that he is a builder by profession and property no.C-11 belonged to him. He had constructed it from ground FIR No.374/06 State vs. Shyam Lal Page 6 of 11 to third floor and had sold it in parts. The shop in dispute was also sold by him in the year 2000 or 2010. He had never given the said shop to complainant as a tenant and this case was falsely filed against him to usurp the said shop. Prior to registration of present FIR complainant had filed a writ petition bearing no.WP (Crl.) 218/2005 against him which was dismissed vide order dt 16.09.2005( Ex. PW 15/D-1) after filing of status report by SHO PS Shakarpur (Ex. PW 15/D2). The complainant Rajni Gupta also served him with legal notice on 06.01.2005 specifically mentioning that he had not given her NOC for electricity connection. The said notice is Ex. D-1 and its envelope is Ex. D-2. He also made complaint against the complainant in September 2005 as well as December 2006.
DEFENCE EVIDENCE 22 The accused did not examine any witness in support of his defence.
23 Final arguments have been heard and record carefully perused. JUDICIAL RESOLUTION 24 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always FIR No.374/06 State vs. Shyam Lal Page 7 of 11 goes to the accused and it entitles the accused to acquittal.
25 In the present case accused has been charged for offence u/s 448 IPC which provides punishment for house trespass. The word house trespass is defined in Section 442 IPC which provides that criminal trespass by entering into or remaining in any building,tent or vessel, used as a human dwelling or any building used as a place of worship or as a place for the custody of property amounts to house trespass. Section 441 defines the term criminal tresspass. The said section has three essentials:-
i) Entry into or upon property in possession of another
ii) If such entry is lawful then unlawfully remaining upon such property
iii) Such entry or unlawful remaining must be with intent to commit an offence or to intimidate, insult or annoy the person in possession of the property.
26 In view of the above definitions, the prosecution in order to secure a conviction of the accused for offence u/s 448 IPC was required to primarily prove beyond any reasonable doubt that complainant was in possession of the property in dispute i.e. one shop in property no.C-11, Aruna Park, Laxmi Nagar. In order to prove its case and the possession of the complainant on the property in question various witnesses have been examined by the prosecution. 27 The witness from the post office has been examined as PW 1.
However, he was hostile and did not support the case of the prosecution. Similarly, public witnesses i.e. PW 6, PW 8 and PW 9 are also hostile witnesses and have not supported the case of the prosecution. The only two witnesses supporting the case of the FIR No.374/06 State vs. Shyam Lal Page 8 of 11 prosecution on the aspect of possession of the complainant in the shop in dispute are complainant herself who is examined as PW 5 and one neighbour namely Chetan Jaiswal who is examined as PW
7. 28 The public witness Chetan Jaiswal/ PW 7 is not a completely trustworthy witness as firstly he had stated that although he knew Mahesh Chand Gupta but was not aware if complainant Rajni Gupta was his wife. He also did not give the description of the shop in which the complainant was running a shop of dry fruits. However, in his cross examination by Ld. APP for State he admitted that Mahesh Chand Gupta and his wife were running a shop at house no.C-11, Aruna Park, Laxmi Nagar. However, this witness has not given any dates when the said shop was being run by Mahesh Chand Gupta or his wife. Rather, he has stated that it was in the year 2006 which is completely contradictory to the case of the prosecution as per which the accused had tress passed in to the shop in question in the intervening night of 19/20.01.2005 thus, dispossessing the complainant Accordingly this witness cannot be relied upon to hold that he has proved the possession of the complainant over the shop in dispute prior to the alleged incident.
29 The other witness is complainant/ PW 5. She deposed that accused had given shop in question on rent to her in the year 2001 and it remained with her till 2004. She also stated that in the intervening night of 19/20.01.2005 accused Shyam Lal had forcibly taken possession of her shop by breaking the locks. However, as per her testimony the police was not immediately informed at 100 number and accordingly there is no immediate investigation by the police nor there are any photographs of any broken locks on record. PW 5 also FIR No.374/06 State vs. Shyam Lal Page 9 of 11 could not produce any document such as rent deeds or rent receipts to show her possession over the property in question. In her cross examination also she has admitted that she was in possession of the shop till the year 2004. This statement clearly contradicts her stand that the possession of the shop was forcibly taken from her on the intervening night of 19/20.01.05. Accordingly even her testimony is not considered sufficient for holding that she was in possession of property in question before the alleged incident. 30 In addition to the above two witnesses, prosecution has relied upon a bank account opened by the husband of the complainant with Jain cooperative Bank giving the address of C-11 Aruna Park. The document in this regard has been proved by witness PW 10. However, PW 10 has admitted that at the time of opening of the bank account the address was not verified. Even the pan card and election I Card, copies of which were handed over to the bank at the time of opening of bank account donot bear the address of C-11, Aruna Park. Rather the I-card is of the address 1/35, Vishwas Nagar. 31 Similarly the prosecution is also relying upon the documents procured from MTNL for installing a telephone connection at property no.C-11 by husband of the complainant namely Mahesh Chand. The witness from MTNL has been examined as PW 13 who has again produced the photocopies of Pan Card and ration card which were submitted by Mahesh Chand at the time of applying of MTNL connection which are mark Ex. PW 13/A1 and A2. Both these documents again do not bear the address of C-11, Aruna Park and Ration Crd bears the address of 1/35 Vishwas Nagar. PW 13 also produced the NOC which was allegedly given by the accused in favour of the complainant for obtaining the MTNL connection. The FIR No.374/06 State vs. Shyam Lal Page 10 of 11 said NOC (Ex. PW5/DA) has been disputed by the accused and it is submitted by him that it bears his forged signatures. The said NOC was also sent to FSL alongwith the admitted and specimen signatures of the accused. However, no conclusive report could be given by the FSL on comparison which is clearly mentioned in FSL report Ex.AD-2.
32 In these circumstances there is nothing on record on the basis of which it can be held that the prosecution has proved the factum of possession of the complainant over the property in question beyond any reasonable doubt. Since the possession of the complainant over the property in question on the alleged date of incident i.e. intervening night of 19-20.01.2005 is in itself doubt, the accused cannot be convicted for offence u/s 448 IPC as charged against him as one of the ingredients of the said offence is missing. 33 In view of the reasons given above and considering the over all evidence on record, I have no hesitation in holding that prosecution has miserably failed to prove the offences as charged against the accused. The accused Shyam Lal is accordingly acquitted for offences u/s 448 IPC as charged against him.
Digitally signed by SHIVALI SHARMA SHIVALI Location: East
District Karkardooma
ANNOUNCED IN THE OPEN COURT SHARMA Courts Delhi
Date: 2018.12.11
ON 11.12.2018 17:11:44 +0530
(SHIVALI SHARMA)
CMM(EAST)/KKD/11.12.2018
Certified that this judgement contains 11 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM(EAST)/KKD/11.12.2018 FIR No.374/06 State vs. Shyam Lal Page 11 of 11