Delhi District Court
State vs Lal Singh on 23 November, 2023
IN THE COURT OF RISHABH KAPOOR,
METROPOLITAN MAGISTRATE-05 NORTH WEST
DISTRICT, ROHINI COURTS: DELHI
State Vs. : Lal Singh
FIR No : 2562/2014
U/s : 448 IPC
P.S. : Mangolpuri
JUDGMENT:
1. Criminal Case No. : 541351/2016 2. Date of commission of offence : 24.12.2014
3. Date of institution of the case : 17.11.2015
4. Name of the complainant : State
5. Name of accused and parentage : Lal Singh
S/o Sh. Nanak Chand
6. Offense complained or proved : 448 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 06.11.2023 9. Final order : Convicted. 10. Date of final order : 23.11.2023 FIR No.2562/2014 State Vs. Lal Singh.
1. The accused is facing trial for offence u/s 448 IPC. The genesis of the prosecution story is that pursuant to complaint dated 24.12.2014 filed by complainant Hari Ram Mehto, who was working as Assistant Director, Delhi Urban Shelter Improvement Board (DUSIB in short), Govt. of Delhi, it was reported that the shop Plot No. G-26, Industrial Area, Mangolpuri, Delhi, which was lying vacant as per the records maintained by DUSIB, was encroached upon by some unscrupulous persons by raising massive construction work and despite issuance of show cause notices, the illegal occupier of said plot did not vacate the same and hence, the matter was reported to police. On the basis of the aforesaid complainant, criminal law as set into motion was vide registration of the case FIR and upon investigation, it was found that accused Lal Singh had illegally encroached upon the above-mentioned plot and has thereby committed offence of criminal trespass. After completion of investigation, the present chargesheet was filed by police for conducting trial of accused for offence U/s 448 IPC.
2. After taking cognizance of the offence, the copy of charge- sheet was supplied to accused in compliance of section 207 Cr.P.C. The arguments on charges were heard and charge for offence u/s 448 IPC was framed against accused. The accused pleaded not guilty and claimed and trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined three prosecution witnesses.
4. After statement of accused U/s 313 Cr.PC, the accused reserved the right to lead the evidence in defence and during the course of his defence evidence, he also examined two witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 448 IPC has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials at the behest of complainant. Arguing further, Ld. counsel has inter-alia submitted that the plot in question is coming into the ownership of the accused and he being the owner of the said plot is well within his rights to occupy the same. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and are therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief.
PW-1 SI Gurmail Singh is a formal witness. He deposed that on 31.12.2014, he was working as Duty Officer and pursuant to the rukka received at Police Station, he registered FIR Ex. PW-1/A after endorsement on rukka Ex. PW-1/B and issued certificate U/s 65B Indian Evidence Act which is Ex. PW- 1/C. PW-2 Hari Ram Mehto is the complainant in the present case. He deposed that in Year, 2014, he was working as Assistant Director in DUSIB and in the month of December, 2014, it was reported to him that one shop No. G-26, situated at Industrial Area Mangolpuri which was lying vacant as same was not allotted to anyone, was encroached upon and construction work was going on at the said shop. He deposed that upon direction of CEO of DUSIB, complaint Ex. PW-2/A was made by him. He also deposed that the notices to occupant of said shop which are Ex. PW-2/B, Ex. PW-2/C & Ex. PW-2/D were also issued by him. He also proved the complaint dated 14.07.2014 which is Ex. PW-2/E. During his cross-examination, he admitted that he did not visit the shop personally. He also admitted that he does not know who was occupying the shop in question.
PW-3 Insp. Gaurav Kumar is the IO in the present case. He deposed that on 31.12.2014, FIR No. 2562/14 was marked to him after which he is started the investigation and went to Plot No. G- 26, Mangolpuri Industrial Area and at the spot and inspected the spot. He further deposed that site plan Ex. PW-3/A was prepared by him and he also issued notice U/s 91 Cr.PC Ex. PW-3/B to DUSIB and reply Ex. PW-2/B was received by him. He further deposed that the board also submitted certain photographs of the spot on which accused constructed his house which are Ex. PW- 3/P1 (colly). He further deposed that on 30.10.2015, he arrested the accused vide memo Ex. PW-3/C and also conducted the personal search of accused vide memo Ex. PW-3/D. He further deposed that the accused was thereafter released on bail. He further deposed that the accused was staying on the said plot. During his cross-examination, he deposed that when he prepared the site plan, there was no other construction near the house of accused nor did he meet any public persons when he reached the spot. He admitted that no construction took place in his presence or during the investigation conducted by him. He admitted that the accused was residing on the plot in question and he was arrested from his house. He denied that the alleged plot belongs to accused and there was no illegal construction done by him.
This is the entire prosecution evidence on case record.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
8. Statement of the accused u/s Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidences were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to lead evidence in his defence.
9. The testimonies of defence witnesses examined by accused are discussed briefly here-in-after.
10. As stated earlier, the accused also opted to lead defence evidence and his examined two defence witnesses.
DW-1 Sri Narain deposed that he is knowing the accused since Year 1980 and is having friendly relations with him being his neighbour. He further deposed that accused has informed him about the description of the present FIR. He further deposed that a census survey was held in year 1980 wherein an official had asked him to produce the relevant documents with respect to his residence after which, he and accused produced certain slips issued by Slum Board in proof of ownership of property. He deposed that he and accused visited the office of census department and stayed there for half an hour and completed the formalities regarding their residence in the locality. He further deposed that accused also produced electricity bill and voter I.D. Card pertaining to the said address in his presence and accused alongwith his family as well as father and mother is residing there since long in a peaceful manner. During his cross- examination, he could not tell about the date on which he visited the office of census department alongwith accused. He deposed of having no knowledge regarding the notices issued to accused by the DUSIB. He denied that the accused has trespassed on the land near Shop No. G-26, at Industrial Area. He denied that neither the accused nor his family members resided on the land near the Shop No. 26. He also denied that he is deposing falsely in collusion with the accused to grab the govt. land.
DW-2 Lata Rani deposed that she is knowing accused since year 1980 and is having friendly relations with him being his neighbour. He also deposed that the accused informed him about the description of the present case. She further deposed that in year 1985, a theft had taken place in the residence of accused and robbers took away all his documents and some money. During her cross-examination, she could not tell as to when said theft had taken place at the house of accused nor she could state whether accused or his family members got registered any FIR qua the said theft. She denied that accused had trespassed on Shop No. G-26, at Industrial Area. She further denied that she is deposing falsely in collusion with accused to grab the govt. land.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused has been indicted for the offence u/s 448 IPC.
12. For the sake of repetition, it is again reiterated that the sum and substance of the allegations as levelled against accused is that on 24.12.2014 at unknown time at Plot No. G-26, Industrial Area Mangolpuri, Delhi, accused committed the house trespass by entering into said plot which as per record of Urban Shelter Improvement Board was lying vacant being the property of said board and thereby committed an offence U/s 448 IPC.
13. Herein, it becomes pertinent to briefly discuss the provisions of Section 448 IPC alongwith the essential ingredients for constituting the said offence.
14. Section 448 IPC provides for punishment of offence of House trespass which is defined in section 442 IPC as, "Whoever commits 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 for worship, or as a place for the custody of property, is said to commit 'house−trespass'." Criminal trespass has been defined in Section 441 IPC as, "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit 'criminal trespass'."
15. Thus, it is necessary for an offence punishable u/s 448 IPC that essential ingredients of criminal trespass and house trespass must be fulfilled. For commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
a) entry into or upon property in possession of another;
b) if such entry is lawful then unlawfully remaining upon such property;
c) such entry or unlawful remaining must be with intent: (i) to commit of offence or; (ii) to intimidate, insult or annoy the person in possession of the property.
Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. The word 'possession' used in the definition of 'criminal trespass' as has been observed in a catena of judgments includes both 'actual possession' as well as 'constructive possession'. In Sant vs The Union Of India AIR 1962 HP 1, the Hon'ble Himachal Pradesh High Court observed that, "the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessi- naturalis and possession in law as possession-civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I. P. C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word possession with the words 'actual and physical'...... annoyance will be caused to the owner of vacant property if the same is trespassed upon with a view to oust him and he is not in collusion with the trespasser. He may have to take steps to recover possession and be involved in litigation and it cannot he gainsaid that to be involved in litigation is no pleasure".
16. Applying the aforementioned test in the present case to determine the aspect of possession of DUSIB, from the testimonies of the complainant/PW-1 and PW-3 i.e. Insp. Gaurav Kumar, it stands established that the complainant had if not actual possession, constructive possession of the property in question. Therefore, even though DUSIB was not in actual possession of the property trespassed upon, the act of trespass committed by the accused did cause annoyance to it. In Sant vs The Union Of India AIR 1962 HP 1, the Hon'ble Himachal Pradesh High Court also observed that, "If trespass upon vacant land causes annoyance to its owner such trespass may also be committed with intent to annoy him. There undoubtedly is a distinction between the commission of an act with intent to annoy and the commission of an act with knowledge that it will or is likely to annoy. Unless there has been a declaration of the intention the intent will have to be gathered from the conduct of the accused and the surrounding circumstances and while an intent to annoy would not necessarily be deducible from knowledge that a certain act is likely to cause annoyance such knowledge may be taken into consideration in ascertaining the intent of the accused. An owner of property which is not in his actual possession may also in certain circumstances be the victim of criminal trespass. Thus, there is nothing in the context to restrict or control the wider connotation of the word 'possession' as used in the earlier portion of the section. On a construction of the section it cannot be said that in order to constitute criminal trespass it is absolutely necessary that the person in possession must be in actual and physical possession".
17. Ld. counsel for the accused has argued that the element of 'criminal trespass' does not exist in the factual scenario of the case at hand as the accused himself was the allottee of the plot in question and was residing there since year 1980. This being the scenario, it is noted that there is nothing on record to prove the allotment of the property in question in favour of the accused. The accused has not produced any allotment slip showing his entitlement over the property in question and the explanation which is tried to be put forth with respect to such non-production of documents regarding the allotment of plot to accused is that the documents have been stolen from the residence of accused during the incident of theft which had taken place in year 1985. The accused has examined DW-2 in support of such submissions but a careful perusal of the testimony of said DW also goes no to reveal that she could not depose anything with respect to registration of FIR by accused qua said incident of theft. Even the accused could not state about said crucial facts during his statement U/s 313 Cr.PC nor the copy of any FIR with respect to the aforesaid incident of theft at the house of accused has been brought on record in support of the contentions raised by defence. Therefore, this argument of learned counsel for the accused does not hold much weight.
18. The crucial evidences which are to be considered at this juncture are the testimony of complainant/PW-2 and the documents Ex. PW-2/B to Ex. PW-2/D on record. The mere perusal of said documents would reflect that the plot in question was the property of DUSIB and same was lying vacant. It also surfaces from the said records that prior to setting the criminal law into motion, DUSIB had also sent notices to the accused for vacating the said plots but he did not pay any heed to same. It is also pertinent to mention that the defence of accused primarily revolves around the fact that the plot in question was the property over which the ownership vested with the accused. It has also been admitted on behalf of accused that he was residing in the said plot since year 1980. Pertinently, the accused has not produced any documents testifying about his ownership over the plot in question and on the contrary, it is evident from record that the plot in question was under the ownership of DUSIB. The constructive possession of DUSIB over the plot also stands established in the light of the evidences adduced by the prosecution. There appears an unequivocal admission on the part of accused that he has been coming in possession of the said plot since year 1980. Both the DWs examined by the defence testified about accused coming into possession of the plot in question. This unequivocal admission on the part of accused is relevant U/s 58 of Indian Evidence Act which stipulates that the facts which a party admits during the proceedings of case does not require any proof. In the light of said admission made by the defence with respect to the possession of the accused over the plot in question, now it only remains to be seen whether the accused had acquired the said possession with the permission of DUSIB or under some legal entitlement. There is no evidence whatsoever led by the accused to establish that he was occupying the plot in question under some legal entitlement nor the accused has established his stance qua allotment of the plot to him by placing any evidence or material convincing enough to corroborate his version. On the contrary, it rather emerges from the evidences on record that the accused was not having any right or entitlement to enter into the plot in question but he persisted with the acts of raising construction over the same despite being served with notices by the rightful owner of the plot i.e. DUSIB. It also emerges that due to acts of the accused, not only the possession of the DUSIB over the plot in question has been interfered with but an unnecessary burden has also been placed upon the said agency to set the criminal law into motion, which in itself is sufficient to establish the annoyance being caused to the owner of the said plot i.e. DUSIB.
19. In the light of discussion made above, I am of the considered view that the prosecution has successfully established all the essential ingredients for constituting the offence of criminal trespass by the accused beyond all reasonable doubts. More specifically, it is established beyond reasonable doubts that on 24.12.2014, at unknown time, accused Lal Singh committed the offence of house trespass by unlawfully entering into the Plot No. G-26, Industrial Area, Mangolpuri, which was in the constructive possession of DUSIB with an intent to cause annoyance to the owner of said plot (i.e. DUSIB) and by the said acts of accused, annoyance was in fact also caused to DUSIB.
20. Accordingly, the charge for offence U/s 448 IPC against accused Lal Singh is duly proved and he is accordingly convicted for the offence U/s 448 IPC.
21. Let accused be heard separately on point of sentence.
Announced in the open court on 23rd Day of, November, 2023. (Rishabh Kapoor) M-05 North West District Rohini Courts, Delhi