Delhi District Court
State vs . on 15 December, 2009
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IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI.
In re:
State
Vs.
Dilip and Anr.
FIR NO. 7/99
PS : STF
1. Sr. No. of the case : 113/02
2. Date of institution : 09/06/1999
3. Name of the complainant : Sh. S. Kumaraswamy
4. Date of commission of offence: 10.08.9801.02.1999
5. Name of accused : (i) Dilip Kumar Bhargava
S/o. Late Sh. R.S. Bhargava
R/o. 435, Gali Sheesh Mahal,
Bazar Sita Ram, Delhi.
(ii) Ashok Arora
(since deceased)
S/o. Late Sh. Roshan Lal
R/o. M91, Jagat Ram Park,
Laxmi Nagar, Delhi92.
6. Offence complained of : 345A/461 DMC Act & 188/448
IPC
State vs. Dilip; FIR No. 7/99
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7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 08.12.2009
9. Final order : Acquittal
10.Date of such Judgment : 15.12.2009
J U D G M E N T
1. The First Information Report No. 7/99 u/s. 345A/461 Delhi Municipal Corporation Act, 1957 (in short 'Act') and u/s 188/448 Indian Penal Code, 1860 (IPC) was registered on the basis of complaint dated 05.02.1999 made by Dy. Commissioner, MCD, Shahdara (South) Zone, whereby it is alleged that the property no. D14/382, Laxmi Nagar (in short "property") was sealed by MCD along with officers of STF on 10.08.1998 on account of deviation against the sanctioned building plan u/s 345A DMC Act. It was further mentioned that during the course of routine inspection, JE (Building) of the area found on 01.02.1999 that seal of the property had been tempered with and broken open illegally and owner/builder of the property has entered the premises and is State vs. Dilip; FIR No. 7/99 3 carrying out the construction unauthorizedly. During investigation, site plan, arrest memo, personal search memo were prepared, disclosure statement was recorded and ownership and MCD documents of the property were seized. The accused persons were found to be owner of the property and as such they were chargesheeted and summoned for facing the trial.
2. Finding a primafacie case, Sh. O. P. Saini, the then Ld. MM, Shahdara, Delhi, vide order dt. 01.02.2000, framed charges u/s. 345A/461 of the Act and u/s.188/448 IPC against accused persons, to which they pleaded not guilty and claimed trial.
3. For proving its case, the prosecution produced five witnesses. 3A. PW1, Sh. Rajender Kumar Joshi, Office Incharge, MCD Building Department, South Zone, Shahdara, Delhi, produced the following original summoned record pertaining to the property:
(i) FIR (MCD) dated 26.06.1998 Ex. PW1/A.
(ii) First show cause notice of demolition dated 26.06.1998
Ex.PW1/B.
State vs. Dilip; FIR No. 7/99
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(iii) Prior permission for sending the second show notice for
demolition dated 26.06.1998 (signed on 03.07.1998) Ex.PW1/C.
(iv) Second show cause notice of demolition dated 03.07.1998 Ex.PW1/D.
(v) Demolition order dated 26.06.1998 (signed on 13.07.1998) Ex.PW1/E.
(vi) Internal office correspondence Ex. PW1/F.
(vii) Sealing show cause notice dated 30.06.1998 Ex. PW1/G.
(viii) Sealing order dated 17.07.1998 Ex.PW1/H. 3B. PW2, P. K. Jain (JE), testified that the property was sealed on 10.08.1998 in the presence of Sh. A.P. Sharma, A.S. Khan and R.A. Goyal. During the routine inspection on 01.02.1999, he found the seal of the premises broken. Thereafter, he informed this fact to the higher officers. Further he mentioned that both the accused persons are the owners of the property. IO prepared the site plan on his instance on 08.03.1999 and his statement was recorded. During crossexamination, he mentioned that in the sealing orders, the names of the accused persons are mentioned. Further replied that his name is mentioned in the sealing orders but no signatures were obtained from him at the spot. It is further stated that he had not inquired about the ownership of the said property.
3C. PW3, S. Kumaraswamy, Dy. Secretary, Ministry of I & B, State vs. Dilip; FIR No. 7/99 5 testified that on 05.02.1999, he made a complaint (Ex. PW3/A) to Dy. Commissioner of Police for registration of case against the accused persons for illegally tampering or breaking open the seal of the property. Further mentioned that violation was reported to him by JE, P.K. Jain on 01.02.1999. It is also mentioned that he signed the internal correspondence memo Ex. PW1/F, show cause notice for sealing Ex. PW1/G and sealing order Ex. PW1/H. 3D. PW4, R.A. Goel, JE (Civil), testified that during survey of area, he noticed unauthorized construction at the property and it was booked vide file No. 46/B/UC/SH/S/98 dated 26.06.1998. Thereafter show cause notice for unauthorized construction was issued but no reply was received. Demolition order was passed. Show cause notice for sealing was issued by the competent authority and sealing order was passed on 17.07.1998. Thereafter he sealed the premises along with MCD staff and STF staff. Further he proved the documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/D and Ex. PW1/E. During crossexamination, he submitted that he cannot say as to who had broken the seal because at that time he had been transferred from the area office.
State vs. Dilip; FIR No. 7/99 6 3E. PW5, Harvinder Singh, stated that on 11.02.1999 he received the rukka given by Inspector Ram Chander and on the basis of that, he registered the present FIR marked as Ex. PW5/A.
4. When all the incriminating evidence, brought on record by prosecution side, was placed before the accused to know his explanation u/s. 281/313 Criminal Procedure Code (Cr.P.C.), he stated that he has been falsely implicated as he has not broken any seal at the premises. Further it submitted that witnesses who have deposed against him are interested witnesses. It is also stated that he is not residing at the address given (property).
5. Accused opted to lead evidence in defence. Two witnesses were produced. DW1 (Vishal Nagpal) and DW2 (Raj Kumar) stated that MCD officials never sealed the property nor accused had broken or tampered the seal. It is further mentioned that accused persons have been falsely implicated in this case.
State vs. Dilip; FIR No. 7/99 7
6. I have heard the State through Ld. APP Sh. Jitender Sharma and Sh. J. P. Singh, Learned defence counsel and perused the record.
7. It is submitted by Ld. APP that PW2 and PW4 have proved the fact of sealing of the property by MCD and PW2 has also proved that the seal of the property was found tampered with on 01.02.1999 and therefore accused, who is the owner of the property, be convicted for the charge framed against him. Per contra, it is argued by Ld. Defence Counsel that the prosecution has failed to establish the basic ingredients of the alleged offences. It is submitted that there is no material on record to show that accused is the owner of the property and further that property was ever sealed by the MCD. It is further contended that even if it is assumed that property was sealed by MCD, there is no evidence on record to prove that accused broke open the seal and trespassed into the property.
8. As far as contention of Ld. Defence Counsel as to sealing of the property is concerned, it is observed that PW2, PW3 and PW4 have State vs. Dilip; FIR No. 7/99 8 categorically testified that the property was sealed on 10.08.1998. This fact has not been rebutted during their crossexamination. Even a suggestion was not put to these witness in this regard. Though the defence side has brought two witnesses to show that property was never sealed by MCD but their testimony do not inspire confidence since they were not supposed to remain at the property round the clock. Moreover, the fact of sealing of the property has been proved by way of documentary evidence which has to be given preference over oral evidence led by defence side.
9. Now the important question arises as to illegal desealing of the property and trespassing committed by the accused persons. First of all, it has to be seen that what was the motive before the accused persons to commit the alleged offences because a person can not be expected to commit it merely for the sake of violating the law. It is the prosecution case that accused is the owner of the property, however, no substantial material has been brought on record to establish this fact. Further, it is State vs. Dilip; FIR No. 7/99 9 noteworthy that though it is alleged in the complaint Ex. PW3/A that accused was found raising unauthorized construction on the property after breaking open the seal affixed by MCD, however, none of the prosecution witnesses have deposed to this effect. There is not an iota of material on record to suggest that accused was found in possession of the property on or after 01.02.1999, what to talk of the unauthorized construction raised by the accused at the property.
10. Moreover, it can be observed that in all the documents except sealing show cause notice and sealing order, Ex. PW1/G and Ex. PW1/H respectively, proved on record by prosecution, the name of the owner/builder has not been mentioned and in the aforesaid two documents also, the name of the owner has been mentioned as one Mr.B. Kumar. Admittedly, he has not been arrayed as accused in the present case. Therefore, a strong doubt arises as to involvement of accused persons in the alleged offences.
State vs. Dilip; FIR No. 7/99 10
11. Not only this, there is no direct evidence on record to establish that the accused persons desealed the property and trespassed into it. Though it has been mentioned that property was found desealed during routine inspection conducted on 01.02.1999, however, it has not been proved as to who was found in possession of the property at that time or as to who had committed the offence of desealing the property. On this point, it is submitted by Ld. APP that since defence witnesses have not disputed the ownership/possession of accused persons in respect of the property, a presumption arises that only accused persons had the opportunity to commit the alleged offences. This contention deserves rejection since it is settled proposition of law that an accused cannot be convicted in a criminal case only on the basis of a presumption or strong suspicion. The prosecution has to prove its case beyond reasonable doubt. Moreover, the prosecution cannot take advantage of the weaknesses of the defence case and it has to stand on its own legs to prove the case beyond reasonable doubt.
State vs. Dilip; FIR No. 7/99 11
12. For the above said reasons, it is concluded that the prosecution failed to prove the charges against the accused. Therefore, accused is ordered to be acquitted.
Announced in the open court ( Vivek Kumar Gulia )
th
On 15 Day of December, 2009 MMI (East)
(Total eleven pages) Karkardooma Courts,Delhi.
State vs. Dilip; FIR No. 7/99
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State vs. Dilip; FIR No. 7/99