Delhi District Court
State vs . Bhagwant Dutt & Ors. Fir No. 141/94, Ps ... on 22 February, 2011
State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 1 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 141/94. PS. Mukherjee Nagar. U/s. 448/34 IPC. State Vs. Bhagwant Dutt & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 140/2.
B. DATE OF INSTITUTION : 17.10.1994 .
C. UNIQUE ID NO. : 02401R0477352003.
D. DATE OF OFFENCE : 30.06.1994
E. NAME OF THE : Smt. Raj Kumari
COMPLAINANT W/o Late Sh. Ghannu Ram.
F. NAME OF THE : 1. Bhagwant Dutt
ACCUSED S/o Sh. Viyogi Hari Mal.
2. Om Prakash ( Since Expired)
S/o Sh. Shish Ram.
3. Bhagwantey
S/o Lekh Ram.
4. Anil Kumar
S/o Sh. Mahesh Chand.
G. OFFENCE
COMPLAINED OF : U/s 448/34 IPC.
H. PLEA OF ACCUSED : Pleaded not guilty.
I. FINAL ORDER : Acquitted.
J. DATE OF SUCH ORDER : 22.02.11.
State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 2 Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the charge sheet are that on or before 30.06.1994, the accused persons namely Bhagwantey, Bhagwant Dutt, Anil Kumar and Om Prakash ( since deceased) in furtherance of their common intention committed criminal house trespass in the shop No.4, Bhagwati building, Dhaka Village, Delhi by break opening the locks of the said property. Consequently, the present FIR U/s 448 IPC on the basis of the statement of the complainant Smt. Raj Kumari was registered at PS Mukherjee Nagar. On conclusion of investigation the present challan U/s 448/34 IPC was filed in the court.
2. The accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to the accused persons. Prima facie charge U/s 448/34 IPC was made out against all the accused persons. Accordingly, on 10.07.1995 the charge was framed by the Ld. Predecessor of this court. All the accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined three witnesses. PW1 HC Kamini has testified that on 30.06.1994, she was posted as a duty officer at PS Mukherjee Nagar and she registered the present FIR No. 141/94. She has proved the copy of the said FIR as Ex.PW1/A.
4. PW2 Sh. Sohan Lal, S/o Sh. Ghannu Ram has testified that his grand-
father during his life time was running a shop and after his death his father namely Sh. Ghannu Ram was running the shop no.4, Bhagwati Prasad Building, State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 3 Dhaka, Delhi. He has further testified that after death of his father, he kept the goods inside the said shop after getting it cleaned. He has testified that in the month of May, 1994, they went out station and when they returned back, they found that the lock on the shop no.4 had been changed. He has testified that after about 1 or 2 months their complaint was lodged by the police. He has stated that they lodged the complaint against the owner of the shop namely Bhagwat Prasad, Om Parkash and the other two persons. He has deposed in the court that he have seen them for the first time in the court. He again said that one of them is Om Parkash and other persons are the relatives of Bhagwat Prasad. He did not get back goods belonging to him and Om Parkash and his relatives never permitted them to open the shop. Thereafter, he was cross-examined at length by the counsel for the accused.
5. PW-3 Smt. Raj Kumari is the complainant in the present case. She has testified that Shop No.4, Village Dhaka, Delhi, was run by his father in law late Sh. Chanu Ram and after his death by her husband Sh. Gannu Ram, who was doing tailoring business in the said shop. She has testified that her husband kept running the said shop till his death i.e 24th December. However, she failed to disclose the exact year of his death. She had testified that the accused Bhagwati Prasad is the owner of the said shop. She has stated that after death of her husband, she and her daughter in law Smt. Raj Rani started running the shop. However, she failed to identify the accused Bhagwat Dutt in the court. She has testified that after death of her husband they went to Haridawar in the end of May and when they returned back in June, they found that their locks on the said shop have been replaced by some other locks and their goods were lying in the said shop were removed. She proved her complaint dtd.02/07/94, made to the ACP Kingsway Camp as Ex.PW-3/A. She has also deposed that two letters written in Urdu by her husband dtd.06/09/81 & 24/09/81 were handed over to the police. State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 4 Thereafter, her cross-examination was deferred. Subsequently, she never entered the witness box for facing cross-examination of the accused persons. She was summoned several times but it yielded no fruitful result. Her examination in chief was concluded on 13/10/98 and for long 12 years, she remained untraceable for her cross-examination. The prosecution was granted several sufficient opportunities to conclude PE but during the 16 long years of trial the prosecution examined only three witnesses. The accused persons have inalienable right of speedier justice and the same cannot be defeated on unjustifiable and unreasonable ground. Hence, PE was closed.
During the trial of the case accused Om Parkash expired and proceedings against him were abated vide order dtd.15/10/08.
6. The separate statements of all the three accused persons U/s 313/281 Cr.P.C. were recorded. All the incriminating evidence against the accused persons were put to them for seeking their respective explanations. In their statements, the accused persons have stated that they are innocent and they have been falsely implicated in the present case. Accused Bhagwat Dutt has stated that he is the owner of the property and he had allowed the complainant and her relatives to use the open space in front of the shop no.4, Bhagwati Building, Dhaka Village, Delhi and the keys of the said property were handed over to him by them in the month of May 1994, in presence of 8 to 10 witnesses. However, they chose not to lead evidence in defence. Therefore, the case was listed for final argument.
7. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file.
8. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 5 prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
9. In order to sustained conviction U/s.448/34 IPC, the prosecution is required to prove the following ingredients :-
(i). The complainant was in possession of the property;
(ii). Property consisted of a building, tent or vessel used as a human dwelling or a building used as a place of worship or for custody of property;
(iii). The accused entered into or upon such building, tent or vessel;
(iv). Having entered lawfully into such building, tent or vessel the accused remains there unlawfully; and
(v). His intention was to commit an offence, or intimidate, insult or annoy the person in possession.
10. The complainant PW-3 Raj Kumari was examined in chief on 13/10/98 and subsequently, she never entered the witness box to face the cross-examination of the accused persons, despite several sufficient efforts to procure her presence in the court. Since her cross-examination could not be effected, therefore, her examination in chief cannot be considered as an admissible evidence. The right of cross-examination has been specifically conferred on the adverse party because by cross-examination alone the adverse party is in a position to destroy the testimony either by showing that the witness is an interested witness or that she is an unreliable witness or that the facts stated by her in examination in chief would acquire a different colour if the other facts which she has suppressed and which she is forced to admit in cross-examination are brought out. If this valuable opportunity of cross-examination is denied, the evidence of a witness looses all sanctity. Where State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 6 the right conferred U/s.138 of the Evidence Act, 1872, has been denied to the accused, the evidence should be held to be inadmissible. The object of the cross- examination is to impeach the credibility and the general value of the evidence given by the witnesses. The right to cross-examination is one of the valuable right of the accused in order to elicit the truth from the witnesses and the said right is an inalienable right of the accused. Therefore, in absence of cross-examination of PW- 3/complainant, her examination in chief does not have any probative value as the same is inadmissible.
11. The other material witness is PW-2 Sohan Lal S/o Sh. Ghannu Ram, the said witness has not placed on record any documentary piece of evidence to manifest that his father was in possession of the aforesaid disputed shop prior to May 1994. The prior possession of the property with the victim/complainant is a material ingredient and a pre-condition to substantiate the offence of house trespass. Further, he himself in his cross-examination has admitted that last time he visited the aforesaid shop on 24/12/93 i.e the day of death of his father. In these circumstances it is apparent that whatever incriminating things he have stated are merely hearsay evidence and so the same are not admissible in the evidence. It is also clear that he has not seen either of the accused persons committing house trespass by replacing the alleged locks put by them on the aforesaid shop. The other essential ingredient of section 448 IPC is entering of the accused person in the property, that is in the possession of the Complainant. In the instant case neither the prior possession of the aforesaid property with the complainant nor the entry in the aforesaid property by the accused persons has been established. Hence, the other vital ingredients of the offence u/s 448 IPC are also glaringly missing.
12. Moreover, the said PW-2 has even failed to identify all the accused State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 7 persons in the court. Therefore, even their identity is also shrouded with suspicion. Thus the prosecution has failed to lead convincing and cogent evidence against the accused persons and therefore, it has failed to discharge the onus placed upon it. Thus, the accused persons are entitled to benefit of doubt.
13. In view of the above discussion, all the accused persons are acquitted of the charges U/s 448/34 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN OPEN COURT (DHEERAJ MOR)
i.e. 22.02.11. METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
State Vs. Bhagwant Dutt & Ors. FIR No. 141/94, PS Mukherjee Nagar, U/s 448 IPC, Page no. 8 FIR NO. 141/1994 PS Mukherjee Nagar U/s 448/34 IPC State Vs Bhagwant Dutt & Others 22.02.11 Present: Ld. APP for the State.
All the accused on bail with counsel.
The proceedings against the accused Om Prakash have already been abated vide order dt. 15.10.2008.
The separate statements of all the accused persons U/s 313 Cr.P.C recorded. The accused persons have stated that they do not want to lead defence evidence. Put up for final arguments at 2.00 pm. (Dheeraj Mor) MM/Rohini/Delhi 22.02.11 At 2.00pm Present: As Above.
Final argument heard. Vide my separate judgment announced in the open court today, all the accused persons stand acquitted for the offence punishable U/s 448/34 IPC.
The surety discharged and bail bond stands canceled. Original documents, if any, be returned to the person legally entitled after cancellation of endorsement if any, on the said documents.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 22.02.11